Image Rights and Their Clash with Copyright Law: New Challenges and New Horizons

Images play a pivotal role in modern society, as they can convey various messages and acquire autonomous informational, commercial, or social value. It is undisputable that our era is focused and centered on images and the power they have to inspire – some might say “influence” – others’ habits, routines, and ways of thinking or, in one word, living. Everyone has heard the adage “a picture is worth a thousand words,” but think about the fast-growing role played by social media. One ever more high-profile phenomenon is the increasing autonomy of images from the person represented, greatly facilitated and strengthened by the opportunities offered by technology to disseminate images – opportunities that were unimaginable just a short time ago.

In this context, image rights, defined as the rights that every individual has to decide how their picture, name, or voice is used, have come into question. In fact, during the last few years, in particular in the United States, there has been an exponential increase in the number of claims revolving around the question of whether and within which limits the image of a person can be used, without his or her consent, by a third person.

The increasing prominence of image rights – and the subsequent need to balance them with other fundamental rights – is clearly stated in an article by Emily Ratajkowski, published last September on The Cut.com (accessible here). In a piece shrewdly titled “Buying Myself Back: When Does a Model Own Her Own Image?” the author explains how intrusive the use and exploitation of an image without the consent of the depicted person can be. The point is to determine whether the person depicted in the image can – in some ways – control the use and distribution of his/her own images. What happened to Ratajkowski is something that many celebrities are experiencing, meaning, as Ratajkowski put it, “Despite being the unwilling subject of the photograph, I could not control what happened to it.”

The extent to which an individual may control or restrict the use of his or her image is a topic that cuts across a number of areas of law. In different contexts, it can call into conflict the rights of individuals against the state, the rights of individuals against the media, the rights of individuals against commercial enterprises, and the rights of one individual against another. With new technologies and innovative enhancements, image rights have begun to clash with other (equally) fundamental rights, perhaps copyright most prominent among them.

In the last few years, the U.S. legal system has experienced a significant number of lawsuits that scrutinized the use of celebs’ images on social media. It would be difficult to list all of the celebs who have been sued in recent years for posting paparazzi photos of themselves to their Instagram accounts without paying to license the photos and without seeking and receiving the photographers’ permission to do so. Just to mention a few, supermodel Gigi Hadid, reality-television star Khloé Kardashian, pop singer Ariana Grande, and singer Jessica Simpson have all faced such copyright claims.

The matter is a clash between copyright protection and image rights: as mentioned, U.S. celebrities have started to be sued for copyright infringement when they publish images of themselves captured by paparazzi on their personal Instagram pages. The owner of a copyright – i.e., the creator of the work – has the exclusive right to reproduce, distribute, perform, display, and license the work and to prepare derivative works based on the work – including to ability to sue for copyright infringement when that work is used in an unauthorized manner. As the individuals behind the creation of the photos at issue, paparazzi photographers (or their employers) are the exclusive holders of the copyrights to the photos, regardless of whether the subjects consent to such images or not. When another individual or entity – regardless of identity – makes unauthorized use of those photos, that gives rise to a claim of infringement. Some of the sued celebrities tried to build a defense centering on the fact that, prior to any copyright infringement, the paparazzi violated their image rights by intruding upon their private lives and taking their photos without asking for permission.

Pretty much all the disputes of the type described were settled, which means no official position was taken on the clash between copyright and image rights. In all cases, the attorneys representing paparazzi tried to dodge any alleged violation of image rights by relying on the fair use exception. Fair use is set forth by Section 107 of the USA Copyright Act and is an exception to the rights of exclusivity that are granted by copyright to the creator of a piece of work. The purpose of fair use is to provide limited use if it benefits the public, as can be grasped by reading Section 107: “The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Though the Italian legal system has yet to be tested by celebrity cases such as those described above, it is interesting to consider how and to what extent it provides protection to image rights.

In this regard, protection of a person’s image derives from broad provisions in the Italian Civil Code, together with specific statutory provisions related to Italian copyright law covering the use of portraits without permission.

Section 10 of the Civil Code, as well as Sections 96 and 97 of the Italian Copyright Act of April 22, 1941 (“Copyright Law”), are the legal basis for comprehensive protection in terms of the use of an individual’s image, with or without his or her consent. It is noteworthy that image rights have served as a legal basis for judicial recognition of a broader publicity right covering all aspects of the commercialization of an individual’s identity.

In this regard, since the time of what is widely known as the “Lucio Dalla case” (decision of April 18, 1984, issued Court of Rome) the Italian courts have granted very broad and extensive protection to image rights, establishing that the depicted person must also consent to the use and reproduction of objects that identify his/her character and personality (e.g., a distinctive hat).

On the one hand, Section 10 of the Italian Civil Code imposes compensation for damages and the cessation of abuse by those who exhibit or publish the image of a person or their relatives, with a relevant exception covering “cases where exposure or publication is permitted by law, or with prejudice to the decorum or reputation of the person or their relatives.”

Lastly, Sections 96 and 97 of the Copyright Law also deal with image rights and regulate cases in which it is possible to reproduce images and economically exploit the image rights of others. More specifically, Section 96 of the Copyright Law introduces into our legal system what is known as the “principle of consent.” This establishes that it is always necessary to obtain consent to reproduce, display, or market a person’s image. Section 97 of the Copyright Law establishes the legal limits of the right to the image and provides the possibility of reproducing an image of others when publication is justified by the reputation of the person; the public office held by the person; law enforcement or legal, scientific, educational, or cultural purposes; or the person’s participation in events of public interest and held in public. These exceptions apply only when it has been ascertained that publication responds to a specific public interest in information, which takes precedence over the exclusive protection of the image. It is important to note that, by virtue of this principle, the right of image, which remains very personal and inalienable, is never ceded – only the exercise of the same is ceded.

As for the ways in which consent may be given, the law does not provide any particular form constraints to be respected, as it may be given in either express or implied form.

Notwithstanding the above, publication of the image is, in any case, forbidden if it could damage the honor, reputation, or even the decorum of the person portrayed. The assessment as to whether there is prejudice to the honor, reputation, or decorum of the person resulting from the use of the image is normally made by the judge hearing the case.

Based on the above, it is quite clear that within Italian legislation there is no legal rule specifically applying to the case in point of re-posting celebs’ images captured by paparazzi, but the principles mentioned above should be applied on a case-by-case basis. As in many other instances, when considering new technologies and innovative means of communication, it is difficult to find a specific answer within existing legal provisions. On the contrary, it is more likely that courts will be required to adapt current legal rules and mold them to new phenomena in order not to leave gaps in copyright and image rights protection.