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Sunday, 21 January 2018

Image rights and the unauthorized use of one's own portrait on cigarette packs


Plescia's image and
the warning that
"Smoking causes strokes and disability"
Can someone's own image be used without permission?

This question may have different answers, depending on both the context in which the relevant image is used and the legal system considered. With particular regard to the latter, in countries that envisage 'image rights' (or publicity rights), the availability of protection may be even irrespective of the context in which one's own image is being used.

Italian law

This is for instance the case of Italy which, similarly to other continental European jurisdictions, has a long-standing history of protecting image rights. 

The relevant provision in the Italian Civil Code, ie Article 10, states that if one's own image is displayed or published outside the cases in which the display or publication is allowed by law, or in situations which are prejudicial to the honour or reputation of the person, a court may - upon application by the interested person - order that such use is brought to an end, as well that damages are awarded.

In a similar tone, Article 96 of the Italian Copyright Act states that - subject to some limitations pursuant to Article 97 thereof - the portrait of a person cannot be put on display, reproduced or used commercially without their consent. 

The image rights story that a number of Italian newspapers [eg here and here] have reported is therefore quite interesting.

Maurizio Plescia
Becoming a health warning ... without knowing it

A man from Ischia (one of the islands in the Naples Gulf), Maurizio Plescia, was quite shocked when he found out that his image was reproduced on the cigarette packs marketed by different multinationals, as part of what the EU Tobacco Products Directive calls ‘combined health warning’, ie health warnings consisting of a combination of a text warning and a corresponding photograph or illustration illustrating the risks of smoking.

The image of Plescia represented him while hospitalized in Colombia. He had gone there to visit his former partner and - further to certain breathing issues - had taken a medication to which he happened to be allergic. Together with the initial symptoms of pneumonia, such allergic reaction resulted in his hospitalization.  

Apparently while he was lying in his hospital bed, someone took a photograph of him. Subsequently such photograph was included in the picture library administered by the EU Commission pursuant to Schedule 2 of the Tobacco Products Directive, which contains images to be used for the marketing of tobacco products [if you wish to know more about the rationale of health warnings, see here].

Apparently Plescia was not the only one to come forward as the person allegedly depicted in the image of the man in bed, and this has complicated the matter further for him. However, he eventually managed to obtain an expert certification that there are no doubts that the person represented in the image is really him. He first contacted the companies marketing the relevant cigarette packs, but these said that they have no control over or responsibility for the use of the images selected for use on packaging of cigarettes, and that the EU Commission would be rather the one to address.

What's in one's own image?
Other cases

There is abundant case law concerning the unauthorized use of one's own image, and this blog has reported on decisions which have found an infringement of image rights even lacking use of one's own actual image. 

Protection has been granted also in instances relating to the unauthorized use of one's own image in situations in which one was filmed during a public event. For instance, the Italian Supreme Court has held that a TV programme could not use one's own image, captured during a football match, after that event's current character has ended (in this specific case, 6 years after the match).

Some readers might have also read news reports [hereherehere] that a judge in Rome has recently ordered - at the risk of a financial penalty - the mother of an teenager to refrain from publishing pictures of her son on social media. Although the text of the decision is not particularly detailed in the legal reasoning part, it seems that also the protection of one's own image has played a role in the conclusion reached.

A comment

Newspapers do not report whether Plescia’s case has come to an end, but it seems quite incredible – if true - that one could be photographed without their authorization and the resulting image could be included in the Directive's picture library and subsequently used for combined health warnings without obtaining all necessary permissions.

In this sense, Plescia’s case is a useful reminder that, when it comes to using third-party images, wannabe users should not be just concerned about copyright issues (including the non-assignable moral rights of the author of the photograph), but also the rights of the person(s) portrayed in the photograph. The latter may present potentially a risk also in those countries that do not explicitly recognize the existence of self-standing image rights. In this sense, the quite recent Rihanna case in the UK is a telling example [here and here].

5 comments:

Niall Tierney said...

I wonder is it not now time for the EU Commission to actively consider harmonising 'Image Rights' law for the EU. This would be in line with the GDPR and be a further demonstration that the EU will protect the privacy rights of its citizens. I cannot think of a greater invasion of privacy than to have your photograph taken without your permission while ill in hospital.

Wellwell said...

Do you honestly think that the permission of all the models who posed for those images was not obtained beforehand? What a chancer! Elvis has left the building.

Defumation? said...

If image rights fail him, I wonder if libel might be the way to go?

Publication is easy. As to whether it's defamatory, that's interesting! The implication of the image in that context is that the man smoked to the point of damaging his health (ie. irresponsibly). He's being used as an example and a warning to others - don't behave the way this man did.

The Pigs said...

libel?

Whether or not a warning is implicit (and it is certainly desired), truth - the photo NOT being doctored [sic], is a defense, nicht wahr?

Eleonora Rosati said...

@Niall: I agree with you, and it seems to me that the internal market argument is quite strong. I guess, however, that diverging approaches across EU Member States have made this task quite daunting ... at least so far (similarly to moral rights in copyright).

@Defumation and The Pigs: I would also think of a data protection angle here.

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