What’s in one’s own image (right)?

From The Journal of Intellectual Property Law & Practice:

In Western culture, one of the earliest myths dealing with what would subsequently become a literary topos is the one concerning Narcissus. Narcissus was known for both his great beauty and the disdain he showed to those who loved him. In the version of the myth as told by Ovid, Narcissus’s behaviour (particularly towards Echo) prompted Nemesis, the goddess of revenge, to punish him by luring him to a pool. There, Narcissus saw his own image reflected in the water and fell in love with it, without realizing that it was just his own reflection. Unable to fulfil his love, Narcissus eventually melted away from the fire of passion burning inside him.

If we now move away from the realm of myth to that of law, a similar feeling—of attraction and yet unfulfillment—seems to be present when we review the type of legal protection available to one’s own image. In particular, it seems that this feeling is experienced where no self-standing image rights protection is available. In countries of this kind, in fact, different tools can be employed to repress unauthorized third-party uses of one’s own likeness, image, distinctive features, etc. Yet, none of them – even when combined together – seems to allow achieving the same results (and with the same apparent simplicity) that, instead, image rights as (predominantly) an expression of one’s own personality and identity provide.

The contributions that we host in this first special image rights issue move from, indeed, the attractiveness of the idea that the law should protect against the misappropriation and misuse of one’s own image. Yet, they also share a sense of dissatisfaction with the status quo

. . . .

Any change, however, would need to be made, first, in a context in which several conflicting rights and interests are at issue, including third-party artistic and commercial freedom of expression (so that any intervention would need to be ‘surgical’ in both scope and objective). Second, as the articles on, e.g. deepfakes and revenge porn show, any such change would require considerations of different areas of the law and doctrines, as well as fast-paced technological developments. In a field, that of image rights, which puzzlingly remains substantially unharmonized at the international and EU levels, the challenges that, in particular, the latter pose show the need for effective enforcement tools and responses that, due to the very nature of such challenges, will also likely need to be increasingly transnational.Our contributions allow us to travel from the United Kingdom to California, to consider EU, US and Russian laws, to appreciate the interplay between technological, public policy and legal issues, to review image rights in relation to street photography, sexual images and deepfakes.

. . . .

[Analysis of a decision by an Italian court]

The Court of First Instance of Turin held that Audrey Hepburn’s image rights had been violated due to the unauthorized use and exploitation of her likeness for commercial purposes.

. . . .

The judgment considers the two fundamental provisions concerning image rights: Article 10 of the Civil Code and Article 96 of Law No 633/1941 (the Italian Copyright Act). The former protects image rights by solely describing the behaviour prohibited by law, yet without positively defining the concept of image or image right. In fact, the provision laconically states that ‘if the image of a person or his/her parents, spouse or children has been exhibited or published outside of the cases in which said exhibit or publication is allowed by law or [it has been exhibited or published] with prejudice to the decorum or reputation of the person himself or of the aforementioned parties, at the request of the interested party the judicial authority may order that the abuse is ceased, save for compensation for damages’(author’s own translation).

. . . .

It follows that the consent of the right holder is essential for the use of one’s own image or likeness, unless one of the exceptions provided by Article 97 applies. Notably, consent is not required ‘when the reproduction of the image [of a person] is justified by the notoriety or the public office covered by said person, by necessity of law and order, by scientific, educational or cultural purposes, or when the reproduction is connected to facts, events, and ceremonies of public interest or held in public. However, the portrait cannot be exhibited or put on the market if its exhibition or marketing causes prejudice to the honour, reputation or the decorum of the person portrayed’

. . . .

Luca Dotti and Sean Ferrer Hepburn are the sons of famous Hollywood actress Audrey Hepburn. They brought proceedings . . . against Italian corporation 2223 S.A.S. di MB Management & Entertainment S.R.L. (the Defendant), for the unauthorized use of their mother’s likeness.

The Defendant had produced and commercialized nine types of t-shirts representing just as many images portraying the likeness of Ms Hepburn. More specifically, the t-shirts carried the likeness of a woman wearing a sumptuous black dress, a diamond necklace and a tiara in her hair, together with big dark sunglasses and a cigarette with a mouthpiece. All these elements stood to recall, to the general viewer, the character of the young and elegant Holly Golightly in ‘Breakfast at Tiffany’, played by Hepburn. Other images represented the likeness of the actress under a more ‘modern’ angle, by showing her covered in tattoos, or chewing a big bubble gum, or doing a vulgar gesture with her middle finger.

This unrealistic and inelegant interpretation of their mother’s likeness was considered by the Claimants as detrimental to her reputation and honour. Therefore, they sought a declaration of infringement of her image rights as well as compensation of damages, both for profit loss and the weakening of the commercial value of Hepburn’s image, as well as for the moral prejudice to her reputation.

In response, the Defendant argued that the images at hand did not consist of a mechanical representation of the likeness of the actress but, rather, a new, different, original work, which could not in itself be considered a violation. The intent was not that of devaluing the likeness of the actress or her reputation, but rather revisiting the female image through an empowering representation. Furthermore, it claimed to have lawfully used the image since the interested person was a well-known public figure so that the use would fall under the exceptions in Article 97 of the Italian Copyright Act.

. . . .

The Turin court reaffirmed the approach of earlier Italian case law, also recalling that the public interest defence, which is to be applied strictly . . . ‘does not apply where images taken from a film are published and the publication takes place in a context other than that of the cinematographic work and its marketing’.

. . . .

Having ruled out the applicability of Article 97(1), the court considered Article 97(2) applicable instead. This provision states that, even where lack of consent could be disregarded due to exceptional circumstances, the use of one’s own image is still prohibited when the use is detrimental to the honour, reputation or dignity of the person portrayed . . . . Since the images on the t-shirts portrayed the likeness of Ms Hepburn with disregard to her real appearance and her elegance, the court found that the use at hand caused a prejudice to her reputation and dignity.

Link to the rest at The Journal of Intellectual Property Law & Practice (multiple citations to statutes, cases, etc., omitted for the benefit of non-legal readers)

PG suggests that, as a general proposition, indie authors should avoid using the images of famous people (even if deceased) on book covers, promotions, etc., unless they have been dead for a long time – Ms. Hepburn died on January 20, 1993.

If an indie author is publishing a book across a variety of different national borders via Amazon, even if the use of an image might pass muster under US law, the laws of other nations might give rise to claims for damages.

PG further suggests that if someone plans to sue an author for misusing an image for a self-published book, it is quite likely that this person/entity would also sue Amazon in the same proceeding.

Amazon’s involvement would trigger Paragraph 5.8 of KDP’s Terms and Conditions which reads as follows (Highlights are PG’s. He has also separated out some of the sub-parts of the original legalese into subparagraphs for ease of reading):

5.8 Representations, Warranties and Indemnities. You represent and warrant that:

(a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement;

(b) prior to you or your designee’s delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement;

(c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction;

(d) you will ensure that all Books delivered under the Program comply with the technical delivery specifications provided by us; (e) you will be solely responsible for accounting and paying any co-owners or co-administrators of any Book or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable under this Agreement; and (f) you will not attempt to exploit the KDP service or any other Amazon program or service.

To the fullest extent permitted by applicable law, you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.

PG notes that that, in the event that someone felt an author had violated her/his image or publicity rights and was considering a lawsuit, author Jane Jones of Tincup, Montana, might not make a particularly attractive defendant from whom to collect a large amount of money.

However, Ms. Jones and Amazon combined would have the means to pay a very large judgment if the complaining party was successful in a lawsuit pursued jointly against both of them.

1 thought on “What’s in one’s own image (right)?”

  1. Some additional thoughts based on dispute-resolution experience (including litigation and otherwise)… but definitely not legal advice for any particular situation.

    Don’t forget to determine what state (in the US) the target was a resident of at death. It makes a YUUUUUGE difference if it was California, Tennessee, most of the rest of the country… or Louisiana. Not to mention whether the deceased was a veteran.

    California? Film industry. Tennessee? Elvis. Louisiana? Napoleonic code.

    And keep in mind that a dead person doesn’t have more rights of publicity than a live one. So if a live person’s image isn’t protected in a general sense — perhaps only in a “no deceptive claim of endorsement” sense, as in most Midwestern states (and the less said about New York, the better) — a dead person’s image isn’t protected in that general sense. All of this before considering nominative fair use under the Lanham Act, such as using a photo of Kobe Bryant (leaving aside his residency in California!) on a quickie exploitative celebrity bio.

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