How Italy Protects the Right of Publicity: Copyright Law Kicks In

*** The writing does not, and is not intended to, constitute legal advice by any means***

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Prada 2016 Spring/Summer

I've talked about various aspects of the right of publicity, particularly for models. Starting from this week, I will showcase an intellectual "fashion week" in anticipation of the upcoming fashion week in January. Taking a global perspective will hopefully better contextualize where the U.S. stands on this issue. The candidates are Italy, France, Britain, and South Korea. The first three are traditional fashion capitals of the world, and I added Seoul because the city (where I come from) boasts a burgeoning fashion scene that's now more than relevant with the rise of everything that's K-something. So let's start with Italy. Home to a score of brands that pride themselves on exquisite craftsmanship, such as Prada and Fendi, Italy has always been a powerful player in the industry. Even seasoned models rarely skip the Milan fashion week and fashion aficionados (like me!) hold their breath to appreciate what's going to come out of the city's palette of creative talents.

To start off, the right of image in Italy, to a certain extent, is statutorily protected. Using a model's image without his or her consent contravenes the Italian Civil Code. Article 10, for example, provides that "whenever the likeness of a person has been exhibited or published in cases other than those in which such exhibition or publication is permitted by law, the court, upon the request of the interested party, can order the termination of the abuse." Silvio Martuccelli, The Right of Publicity under Italian Civil Law, 18 Loy. L.A. Ent. L. Rev. 543 (1998). The language serves as the statutory basis for claiming a violation of a person's right of image, including models. Subsequent judicial readings of the statute effectively expanded it to encompass the right of publicity. In 1984, in a case involving an Italian celebrity, the court held that "the misappropriation of a celebrity's persona wrongfully endangered an association between a celebrity and a product." Id. at 548. So far, it seems to be pretty in line with what the U.S. has been doing.

Here comes a huge difference. The right of publicity is subsumed to the national copyright regime as well, offering stronger protections against an authorized use of image or likeness. As the World Trademark Review aptly notes, in Italy, publicity rights are "regarded as absolute rights" that warrant a strong presumption of validity in the country. According to Article 96 of the Copyright Law, it is strictly prohibited to exploit a person's likeness through display, reproduction, or commercial distribution without the consent of such person. As long as no powerful policy rationale exists, a person should not be barred from claiming the rightful ownership of the person's readily identifiable attributes such as image or likeness. Article 97 succinctly but forcefully states that a nonconsensual use is allowed only if it promotes "essential public, scientific, educational, or cultural purposes". This carve-out provision shows that pure commercial interests would hardly be eligible for an exception. The exception was, in large part, enacted to give substance to the freedom of press, which has to report on issues that sometimes involve appropriating one's image or likeness for a thorough discussion. So what lesson can we glean from Italy? The right of publicity can be addressed in terms of intellectual property while offering some breathing space for the freedom of press. Italy managed to strike the right balance, just like Italian designers keep experimenting with the golden ratio between the old and the new.