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.