Ferragamo did not infringe Audrey Hepburn’s image/personality rights by stating that its shoes were originally designed for her

Is it an infringement of a person’s own personality/image rights to say that a shoe was designed for that person (and that fact is true)?

This, in a nutshell, is the issue that the Italian Supreme Court resolved in a decision published yesterday (ordinanza 9289/2024) further to a dispute between, on the one side, the estate of Audrey Hepburn and, on the other side, Florentine fashion house Salvatore Ferragamo.

The shoes in question? Ferragamo’s Audrey, Gondoletta, and Ira.

The Supreme Court’s response? Not an infringement.

Let’s see in more detail what happened.

Background

In 2022, the Court of Appeal of Florence upheld the decision at first instance that Ferragamo’s use of the name 'Audrey Hepburn' in connection with the shoe models above did not infringe the late actor’s image rights – more specifically: the right to her name. The Florence court considered that the use made of Hepburn’s name by Ferragamo was in accordance with honest practices.

Insofar as the Audrey shoe is concerned, Ferragamo had been specifically authorized to name it after Hepburn. The description available on its website concerning the history of the shoe – which was created in 1954 for Audrey Hepburn – was found to be lawful. The same was concluded for the other shoe models.

The Audrey shoe on the Italian version of the Ferragamo website

Hepburn’s children (one of them is the son of Audrey Hepburn’s second husband, Italian psychiatrist Andrea Dotti) appealed to the Supreme Court [for the benefit of readers, it should be recalled that the Italian Supreme Court is not a court on the merits].

The Supreme Court’s decision

Articles 6 and 7 of the Italian Civil Code recognize the right to one’s own name and a person’s entitlement to act against any third-party use, including but not limited to commercial uses, that might cause undue prejudice to them. The rationale of protection is rooted within the right to own’s own identity (Articles 2 and 22 of the Italian Constitution and 8 of the EU Charter).

According to the Court, the key issue in the present case revolved around the requirement that the use is ‘undue’. In this sense, it drew a parallel with the right to one’s own image, by which someone's image may be circulated without consent for overriding reasons of public interest.

The circumstance that the use at hand is commercial (so protected under Articles 41 of the Italian Constitution and 16 of the EU Charter) does not automatically mean that the unauthorized use of one’s own name is undue, also because it could be justified by informational purposes (and thus be protected under Articles 2 and 21 of the Italian Constitution and 11 of the EU Charter).

In the present case, it is a fact that Ferragamo created the Audrey and Ira shoes for Hepburn, as it was equally true that Hepburn had worn Gondoletta.

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As such, the Supreme Court found that the Court of Appeal had correctly balanced the interests at issue: even though Ferragamo’s purpose was commercial, the aim of the communication in question and, thus, the use of Hepburn’s name, was merely descriptive.

Comment

There is little to say regarding this decision, if not that it appears difficult to imagine how the Court could have held otherwise.

In all this, it is worth recalling that, under Italian law, image/personality rights have traditionally received broad protection. In this sense, a reference could be made to two other Hepburn cases, one concerning the mere evocation of her character in Breakfast at Tiffany’s (infringing) and another relating to the unauthorized use of her image as Holly Golightly (but represented with chewing gums and tattoos) on T-shirts (also infringing).

On the specific topic of the right to one’s name, and still in the fashion sector, it may be recalled that Dolce & Gabbana were found liable of having infringed Diego Armando Maradona’s right to his name by putting on the catwalk a model with a Naples jersey with his name on it.

On a broader level, the Italian Supreme Court offers a helpful reminder of the importance of striking a ‘fair balance’ between the rights and interests at issue and also that a commercial use is not automatically to be considered undue … Simple but true!