It has been reported that the producers of the famous Spanish TV show “La Casa de Papel”, known as “Money Heist” in English, are being accused by the Gala-Salvador Dali Foundation of infringing Dali’s image rights.
The Gala-Salvador Dali Foundation was setup by Dali himself to preserve his legacy and promote his works. It is claiming that Dali’s image rights have been infringed as the mask worn by most of the characters on the show, as part of their costume for hiding their identity during the money heist, reproduces without authorisation Dali’s facial features including the iconic moustache. In turn, it has been reported that the producers of the show are claiming that no authorisation was required from the Foundation as the use was a “caricature”.
At an EU level, Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, provides that Member States can limit rights in cases where the use is for a caricature, a parody or pastiche. As a Directive, this instrument of EU law requires transposition at Member State level meaning that full harmonisation within the EU is not achieved thereby and Member State discretion in implementation is in place, insofar as the substance of the provision is transposed under national laws.
Had this case to be tried in Malta, it would be useful to note that Article 9(1)(s) of the Copyright Act, Cap 415 of the Laws of Malta, would be relevant as it provides that copyright in an audiovisual work, a database, a literary work other than in the case of a computer programme, a musical or artistic work does not include the right to authorise or prohibit the reproduction or communication to the public of a work by way of caricature, pastiche or parody. Having said that, the concept of “image rights” per se is alien to the Maltese legal system, and generally across the EU, and instead, a bundle of intellectual property rights are typically used to protect a celebrity’s image, providing a patchwork solution which generally primarily revolves around copyright and trademark protection.