It is common to see celebrities, which have captivated the public for decades, photographed using a company product or wearing a branded garment. Using such photos for promoting a company’s brand can be problematic especially because it can create an impression that an endorsement agreement has occurred.
Our American colleagues have already talked about celebrity endorsements on social media and analyzed the right of publicity under the US legal perspective.
What about Italian legislation?
The right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of a person. It gives an individual the exclusive right to license the use of his/her identity for commercial promotion.
According to the Italian Civil Code, every person has a right to protect his/her name and can prevent any prejudicial use of the same. Also, in case of abuse of another’s person name or likeness, such as the exhibition or publication in cases other that those permitted by law or in a manner which is prejudicial to the dignity or reputation of such person, the court, upon request of the interested party, can order the termination of the abuse, without prejudice to the right of damages.
The protection of a person’s image, which is a fundamental, personal, absolute and non-assignable right, is also guaranteed by article 96 of the Italian Copyright Law (Law. No. 633/1941) according to which the portrait of a person may not be displayed, reproduced or commercially distributed without the consent of such person. There is an exception in case the person whose portrait is reproduced is notorious. The Italian Copyright Law specifically states that “the consent of the person portrayed shall not be necessary if the reproduction of the portrait is justified by his notoriety or his holding of public office, or by the needs of justice or the police, or for scientific, didactic or cultural reasons, or when reproduction is associated with facts, events and ceremonies which are of public interest or which have taken place in public. However, the portrait may not be displayed or commercially distributed if its display or commercial distribution would prejudice the honor, reputation or dignity of the person portrayed“.
In light of the above, would it be possible for a company in Italy to leverage the notoriety of a celebrity and use his / her portrait and name for promoting its brand?
Apparently, according to major case law which has provided its restrictive interpretation of the law, the use of a person’s likeness and name for advertising purposes, without having obtained the express consent of such person, even if famous, will not be possible.
Important to note is that unauthorized reproduction and use of the image and the name of a person could also lead to privacy infringement, given that the name and the likeness of a person are also protected as personal data, under Italian data protection law.
As a consequence, companies wishing to use celebrities’ names and images need to get in front of the known risks, depending on how they intend to use them.
Without doubt, great care must be taken not to create the impression an endorsement has occurred and a careful evaluation of the risks shall be made on a case by case basis in order to minimize the threats of a controversy. In any case, getting the celebrity’s permission is, by no means, the preferable way to exclude such risk.