The Milan Business Court “A” recently ruled in a case of image rights infringement initiated by the famous soccer player Gianni Rivera against RCS Mediagroup S.p.A. Rivera challenged the undue exploitation of his image made between 2003 and 2012 by RCS through the marketing, along with the newspaper “La Gazzetta dello Sport”, of some merchandising products (medals) reproducing his image, nine DVDs containing footage of his matches, interviews and photographs, and a book containing his photographs taken both on the occasion of the matches and in different contexts. For this, Rivera requested that the defendant be enjoyned from further exploiting his image and condemned to pay the damages caused, which he quantified as approximately € 7.5 million for image rights infringement and € 5 million for the unlawful processing of personal data.
In the decision under review, the Court rejected the majority of Rivera’s claims, granting them only with reference to a small part of the contested goods. Thus, the Court decided on a hefty reduction of the damages: RCS was eventually condemned to pay € 50,000 in total.
In fact, the Judges observed that the disputed materials mainly contained footage related to national and international football matches in which Rivera had participated. However, the Court noted, “the publication of the footage in question – which obviously does not imply any injury to the honour, reputation or decorum of the plaintiff (prohibited by art. 97(2) of the Italian Copyright Law) – is in fact legitimately performed on the basis of the original consent provided at the time by Rivera and connected to the existing contract with the football club or the organiser of the sporting events in question”. In this context, the decision states, even in the absence of that consent, art. 97(1) of the Italian Copyright Law would apply, according to which “the consent of the person portrayed is not necessary when the reproduction of his/her image is justified by his/her notoriety … when the reproduction is associated with facts, events or ceremonies that are of public interest or are held in public“.
The Judges reached similar conclusions in relation to the interviews included in the contested materials, made by Rivera and related to comments on the matches or on the relationship between the players and the coach: “In this context, it is evident that the fact that the athlete agreed to answer the journalist’s questions in a filmed interview necessarily implies consent to the further publicising of the same interview, the professional player being well aware that the filmed interview was precisely meant to be broadcast to the public through the television“. In this regard, the decision also states that the text of the statements made by the player does not enjoy any copyright protection in itself, lacking any form of creativity in the responses (as well as in the questions, for which even the author of the interview cannot claim any copyright protection): “These interviews are actually based on elementary questions as to factual circumstances pertaining to sporting events or to the relations between players and coaches, with the clear and unambiguous purpose of obtaining, from the interviewee’s answers, information exclusively related to those events and relations. And the interviewee’s answers are not excessive in content and form compared to the purpose of presenting the facts inquired“.
On the contrary, the Court recognised the violation of Rivera’s rights by some photographs depicting him in situations not relating to any matches and, in some cases, in contexts completely unrelated to his sport/public activities. These photographs, the Judges said, are “illustrative materials that objectively exceed the informative and documentary purpose and the reproduction of which cannot therefore be considered admissible without the prior consent of the subject depicted therein“.
The same reasoning applies to the merchandising products (medals) depicting Rivera, even if the image of him was stylised. The Judges in fact observed that “a long-established case law states that the protection of the image of the individual can be extended to also encompass elements not directly related to the person, such as clothing, ornaments, make-up and other things that, for their peculiarity, immediately bring to mind, in the perception of the viewer, precisely that individual to which such elements are inextricably linked“.