Image rights and dissemination in the digital age
During a Coldplay concert at Gillette Stadium in Boston, the “kiss cam” – a common feature at sporting and musical events that captures couples in the audience and invites them to kiss – picked up a man and a woman embracing each other. Taken by surprise, they instantly hid, arousing the curiosity of the audience and immediately fueling speculation that they were lovers.
The scene, shown live on the big screen and promptly captured by spectators on their smartphones, went viral within hours, generating a wave of ironic comments and speculation about the protagonists’ private lives.
During the following days, rumors spread that one of the protagonists was considering taking legal action against the event organizers for accidentally exposing him during the concert.
Taking inspiration from this event, it is legitimate to ask whether such legal action brought by the protagonists of the incident could have legal grounds under Italian law.
More specifically, the question to be asked is whether the reproduction of a person’s image at an event, such as a concert, is lawful. And further, whether the subsequent online distribution of the video depicting the person’s image, filmed by a third-party viewer, is lawful.
To answer these questions, we must first start with the image rights, which in Italy are protected by several sources of law and are recognized as fundamental rights of the individual.
In this regard, it is certainly worth mentioning Article 10 of the Civil Code, according to which any display, reproduction, or publication of the image or portrait of a person without his consent is prohibited.
No less relevant is Article 96 of the Copyright Law, which states the prohibition on reproducing a portrait of a person without his consent, except in the following cases provided for in Article 97, for which it is not necessary to obtain the consent of the person concerned:
- when the reproduction of the image is justified by the notoriety or public office of the person concerned, by the requirements of justice or the police, or by scientific, educational or cultural purposes;
- when the reproduction is connected to facts, events, ceremonies of public interest or held in public (including concerts).
In all these cases, the interest in the free expression of thought and information prevails over the personal rights of the individual, provided that the reproduction of the image does not harm the dignity, reputation or decency of the person portrayed.
Regarding concerts, there is a further clarification to be made, namely that the subject portrayed should be part of the indistinct crowd of spectators and not clearly identifiable or in the foreground, as the latter case could constitute an invasion of privacy, especially if conveyed through means such as websites and social media.
Finally, it should not be forgotten that the image of a person’s face, if identified or identifiable even only in the context of the event, is personal data within the meaning of Article 4 of the GDPR. It follows that, in the absence of the consent of the person portrayed, whoever disseminates the image becomes the data controller and may be held liable for any possible damage caused.
To overcome these problems and to avoid the violation of any of the above-mentioned rules, event ticket distributors usually include specific clauses providing that by purchasing the tickets, the individual consents to the reproduction of his image and therefore to being photographed, filmed, and shown on big screens, broadcasts, or promotional clips.
Alternatively, event organizers usually post clearly visible notices at the entrance to the event regarding the possible use of images recorded during the event.
Therefore, in the absence of such contractual provisions that the person concerned accepts in order to participate in the event or of specific notices displayed at the entrance, any reproduction of an individual’s image during the event is to be considered unlawful.
In a case similar to the one in question, the Supreme Court, in its ruling no. 36754 of November 25, 2021, ordered Sony music label to pay €40,000.00 as compensation for the damage to a woman who, during the recording of a music video for a well-known singer, was filmed on the street with her lover. The DVD containing the video in question had been widely distributed, to the extent that the extramarital affair of the woman who subsequently sought compensation for the damage suffered became public knowledge.
The music label was held liable for failing to obtain consent for the recording and distribution of the image in question and for failing to indicate, by means of appropriate signs, that recordings were taking place in that area.
Having clarified this first aspect, which mainly concerns the liability of the event/concert organizer, there is, however, a further and more important aspect to analyze, namely the possible dissemination of the image by third-party participating in the event. In fact, the consent given at the time of entry by accepting the contractual conditions does not extend to the dissemination of images by third parties.
This is where the real problem of the whole affair lies, namely the subsequent massive dissemination of the video in question online showing images of those involved in the incident without their consent or authorization. All this is in total violation of the afore-mentioned provisions of Article 10 of the Civil Code, Article 96 of the Copyright Law, and Article 4 of the GDPR.
As a result, the protagonists of this story would have the right to take legal action against those responsible for having unlawfully published and disseminated the images in question, requesting their removal pursuant to Article 17 of the GDPR (which establishes the right to be forgotten), in addition to compensation for damages suffered.
However, this action is difficult for the injured parties to take, as it is practically impossible to identify the person responsible for the unauthorized reproduction of the image on the web in order to claim compensation for the damage suffered.
It is no coincidence that Codacons recently issued an official statement calling for a ban throughout Italy on the use of Kiss cams during concerts and public events, in order to prevent the uncontrolled dissemination of images and given the difficulty to identify the person responsible among thousands of people armed with smartphones.
In conclusion, the filming of people using tools such as the “kiss cam”, intensified by the virality of social media, shows how an apparently harmless entertainment form can trigger complex legal issues.
While buying a ticket often implies tacit consent to be part of the audience that is filmed, the uncontrolled dissemination of images on social media raises significant ethical and legal issues.
In an age where every image risks becoming viral content, it would be desirable for legislators to intervene to clearly define the limits and scope within which such sharing can be considered lawful.
Digital Content Creators in the IP world
In recent years, the online communication and entertainment industry has been profoundly revolutionized thanks to technology and its increasing use, which has created new job opportunities including, for example, the creation of digital contents, capable of generating profits. No one should be surprised, therefore, that an increasing number of young people are trying to make their way in this field in an attempt to realize a unique digital product on the various platforms that is immediately recognisable to the public of web.
These people are called “digital content creators” (a category in which the "influencers" can be included), that we want to analyse in this article, especially in relation to some intellectual property aspects.
The digital contents produced by the content creators are protected by copyright law if the requirement of creativity is met. In this case, any unauthorized reproduction and/or dissemination of such digital contents by third parties is expressly prohibited, unless there is an express consent from the digital content creator, which is usually released in exchange for a monetary compensation.
As a result, first of all, the content creator is the owner of the moral rights of the created content, so only he can be recognized as the author of that content; these rights are inalienable and untransferable. Furthermore, the content creator is also the owner of economic utilization rights of the content, which are transferable, even if only partially.
This is the example of the many advertising contracts signed between companies and content creator/influencer. The latter, according to the advertising contract, agrees to create digital content, such as photos, posts, stories or videos, through which he promotes the products and the services of a particular brand. All this in exchange for a monetary compensation but also, in certain cases, the transfer of the property rights of this content in favour of the company, like the right to use and/or reproduce it for any purpose and in any form without incurring any infringement.
This partnership is not new; in fact, it already existed in the past as celebrity marketing, whereby athletes, actors, singers or celebrities from other sectors used their face and image becoming the brand ambassador of a company, so the representative of that brand. However, in the past, the personalities chosen were already famous for other merits, therefore, the consumer purchased the product and/or the service based on the popularity of these personalities and not on their promotional ability. Totally different is the influencer marketing because often the content creators are not famous, so they are more human and accessible, which is the reason behind the "trust" relationship built with the consumer; moreover, the content creators are chosen precisely for their promotional skills and therefore for their ability to suggest and influence their followers about the choice of a certain product and/or service. Thanks to that ability that the content creator can become a real celebrity.
In light of these considerations, the image of the content creator/influencer in the communication and entertainment industry is central and therefore it deserves to be protected and safeguarded.
In fact, the image is an absolute right of a person that cannot be damaged in any way, so its disclosures and/or reproductions without the consent of the person involved are generally prohibited. The rule does not apply for famous and notorious people because in these cases the consent is not necessary, except if the reproduction and/or disclosure of the image would result in prejudice to the reputation or decorum of the person in question. However, it is not always easy to understand when the use of the image is justified by the celebrity of the person or when it instead constitutes a damage to the person's reputation.
This last aspect shows how it is not always easy to protect the image of famous people, such as precisely the content creators, which is the reason that they often adopt alternative remedies to protect their image. One of these is to register their name as a trademark to prevent third parties to improperly use their popularity by taking financial advantage, or, by damaging their reputation.
As further confirmation of the above, also recent case law has denied to famous people the right to protect their image as an intellectual work, de facto depriving them of an additional defence instrument.
This is the consequence of the judgment no. 219/2/2023 of the Second Instance Tax Court of Piemonte, issued against the football player Cristiano Ronaldo, who, in addition to being known as an athlete and as one of the highest-paid players in the world, he has also utilized his popularity, image, and initials (CR7) over the years to generate new economic income, in order to be part of the celebrity/influencer marketing.
The player, who at the time was playing for the Italian soccer club Juventus, had applied for a preferential tax regime under Article 24-bis of the Italian Income Tax Act (TUIR). The aim of that legislation was to encourage foreign citizens, especially the wealthiest, to transfer their residence in our territory and for this purpose had provided for a fixed flat-rate regime for all new-residents, but only in relation to their foreign source income.
Cristiano Ronaldo had requested access to the preferential tax regime provided by the TUIR since believed that the profits originated with the use of his image, so with the celebrity/ influencer marketing, were separate from the football activity carried out, at that time, in Italy. Tax Court of Piemonte denied the application of Article 24-bis TUIR to CR7.
According to the Court, in fact, the image of any person should be protected only as personal quality, it is not the product of an autonomous work, because notoriety could originate, as we have already said, by an artistic or professional activity or ability, or even by the simple skill to promote the own image on social networks and other digital platforms. So, the image is connected to the person and cannot be separated from his life and work. Therefore, the profits deriving from the use of the image of Cristiano Ronaldo could not be separated from his sporting activity, being directly and intrinsically connected.
Beyond the tax implications of this decision, this ruling has generated important consequences for the whole celebrity/influencer marketing industry. In fact, as we have already said, influencers are the most exposed to the violation and injury of their image right. For this reason, in the absence of specific legislation, over the years, they have tried to find escamotages and use other instruments of protection, often referring to copyright and the industrial property code. However, denying the qualification of intellectual work to the image right, the Tax Court of Piemonte has deprived the content creators of a new instrument of protection, generating a legislative gap in the entertainment and communication sector.
In fact, the image of the more and more influencers consists in a real working tool that, if damaged, could cause not only moral but also economic damage, obstructing or making difficult their work.
Therefore, if the regulation of copyright cannot be extended to effectively protect the image of the content creators, we wonder if the legislator will intervene to introduce new and more specific defence instruments in favour of all individuals involved in celebrity and influencer marketing.