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Monday, 9 February 2015

Evoking Audrey Hepburn's image in an ad is not OK, says Italian court

Reminding you
of anyone in particular?
"Moon river, wider than a mile
I'm crossin' you in style some day
Old dream maker, you heartbreaker 

Or shall one rather say … law-breaker?

Both fashionistas at hearts and Mad Men fans, Merpel and this Kat have noticed a recent trend in advertising, ie the use of the image of icons of the past. Perhaps it was Dior and Chanel to start this trend a few years ago by using the image of a young Alain Delon as the face (and body) of Eau Sauvage [here and here] and Marylin Monroe [here] as that of Chanel No. 5, respectively. However these days it seems that everybody is doing it.

The question thus becomes: do you need permission to use the image of a celebrity?

In those countries which recognise image rights [not the case of the UK, as the Court of Appeal of England and Wales recently confirmed], Italy being one of them [see Article 10 of the Italian Civil Code], the answer seems pretty straightforward: yes, you do need permission.

But what happens when you do not use the image of a celebrity, but rather elements that merely evoke him/her [see here for an interesting Israeli case]?

The Court of First Instance of Milan recently dealt with these issues in an intriguing case concerning unauthorised use of evocative elements of Audrey Hepburn's image in an advertisement by Caleffi.

Audrey Hepburn and Merpel
Katfriends Elisabetta Mina and Marina Lanfranconi (MILA Legal) explain the background to this litigation and the findings of the Court. Here's what they write:

"Evening tube satin dress, pearl necklace, stylish sunglasses and a sophisticated hair is the attire chosen just to take a look at Tiffany’s windows: what actress do these elements unequivocally relate to in the general public’s mind?

In its decision on 21 January 2015 the Court of First Instance of Milan ruled in favor of Audrey Hepburn’s estate in a dispute against Italian company Caleffi. The Court found that the actress's image rights deserved protection against unfair use of a number of elements bearing an evocative value which allowed the public to relate to her directly and unequivocally. This is because such elements have become indissolubly connected to her image given their peculiarity and notwithstanding the fact that neither the image nor other features of Audrey Hepburn had been reproduced in the advertisement.

This decision confirms the value of leading Italian case law in this area. Among these precedents, there is the 1984 decision of the Court of First Instance of Rome concerning infringement of singer-songwriter Lucio Dalla’s image rights over the reproduction, in an advertisement campaign, of his typically shaped woolen cap and a binocular pair of glasses (the singer’s longtime favorite ones). More than ten years later, in 1997, there was the decision of the Italian Supreme Court that overruled earlier rulings in the same case and found that the personality rights of well-known actor Totò had been infringed by candy and chocolate manufacturer Sperlari. This had used the word «Totò» as a trade mark and the stylised reproduction of certain main face features (crooked nose and almond shaped eyes), which clearly evoked the actor. The Supreme Court found that such use of Totò's image was an undue exploitation to Sperlari's own commercial advantage.

The latest installment in this string of cases is the Audrey Hepburn one. The action originated from Caleffi’s ad campaign named “The dream diamond”, published by Caleffi on Italian weekly magazine Io Donna and on the company’s own website. In its campaign Caleffi made a photographic reproduction of an ambience and a character (played by a model) that according to Hepburn’s estate recalled Audrey Hepburn’s image and the well-known sequence from Breakfast at Tiffany’s in which the actress, dressed in a sophisticated attire, is looking at the windows of Tiffany’s in New York.

Caleffi counterclaimed that in its campaign it only showed a model with the mere intent to portray an elegant woman (not an Audrey Hepburn lookalike) glancing at a shop window.

The Court of Milan did not agree with Caleffi, and held that the intent was clearly and specifically to evoke in the public‘s mind the image of the actress, as she appears in Breakfast at Tiffany’s, as a symbol of extreme elegance and sophistication."


Anonymous said...

All I want is an ad somewhere
Fully exposed to public glare
To make folk stop and stare
Oh, wouldn't it be luvverly?

People thinking that it was me
My estate rubbing hands with glee
While extracting enormous fee
Oh, wouldn't it be luvverly!

Unknown said...

Ciao Eleanora!

I think you missed the original use of the deceased celebrity - and still one of the coolest ads of all time - Steve McQueen in the Ford Puma from around 1998:

I'm interested in the suggestion that the Audrey Hepburn is entitled to such rights as may exist in her portrayal of Holly Golightly. Surely those rights must be owned by the films producers or director?

Eleonora Rosati said...

@Anonymous: thanks for your lyrics :)

@Unknown: this is a very interesting question. I guess that the film producer/director did not come into question in this case because under Italian law image rights are personality rights, which cannot be waived or assigned. Another question could be: would have Holly Golightly looked so perfect if played by an actress other than Audrey?
And thanks for the McQueen link!

James Wagner said...

Fun possibilities all around:

If another actress had played the part and done a decent job, and Audrey then tried to do her more perfect version would she be prohibited based on the personality rights of the first actress?

If the filmmaker wants to assign the rights to another company to do a remake, are they prohibited from redoing this scene? Do they need a big disclaimer saying "this is not actually Audrey because she's dead" when the scene comes up? Can they use their copyright in the old shot and substantially modify it without impacting her rights?

Anonymous said...

Are these issues tied to the image only? Would a ban, say, extend to the use of the name Audrey Hepburn in the title of a fictional story? The story wouldn't involve her, but her name would be invoked as part of a tale told by a character. All references complimentary.

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