The Italian Supreme Court confirms the damage compensation for the woman filmed with her secret lover in a Gigi D’Alessio music video

With order n. 36754 of November 25th 2021, the Italian Supreme Court of Cassation accepted the claim for damages in favor of a woman who, without giving any consent to use her image, saw herself filmed hand in hand with her lover in the music video of the song “Oi nenna nè” of singer Gigi D’Alessio, contained in a DVD used by Sony.

With an appeal of legitimacy, Sony denounced the wrong application of art. 158 of the Italian Copyright Law stating that the Court of Appeal had improperly recalled in the present case the theory of the so-called price for consent, given that the right to the image of an unknown person would be instead “devoid of any market value”. Following the thesis of the applicant, it should be taken into account that the woman was filmed, almost like a mere extra, for about 10 seconds and, therefore, her presence in the music video did not play any significant role.

The Supreme Court rejected the censorship by recognizing to the unknown person the right to be paid a sum – to be quantified in equity – corresponding to the compensation she might have asked for the consent to the publication. Thus, the confirmation of the position of the Neapolitan Court of Appeal according to which “with the unauthorized publication, the author of the offense takes illegitimately possession of the economic advantaged which would have been due to the victim”. For this reason, the related patrimonial damage must be compensated through the transfer of the advantages from the author of the offense to the correspondent owner of the right.

With regard, instead, to the proof of the non-pecuniary prejudice deriving from the reproduction of the image, the Court, in accordance with what stated by the territorial Court, recalled the presumptive proof of the “anxiety and intimate pain suffered, considering the wide diffusion of the DVD and the social context of residence and origin” of the counter-recurrent.

As a matter of fact, the DVD containing the video under exam, published with the weekly magazine “Sorrisi e Canzoni TV” was object of such a wide diffusion to make the woman’s extra-marital relationship of public domain.

Finally, another reason of the appeal concerned the lack of jurisdiction of the Court of Benevento in favor of the section specialized in industrial and intellectual property (now specialized in business matters) of Naples which jurisdiction, according to the applicant, does not exist only in copyright field but must extend to the rights related to copyright, such as right to image.

Even in this case, the censorship was rejected on the ground that the judgement in exam was not the economical exploitation of the image of the woman but the compensation for the damage deriving from the unauthorized diffusion of the same, even within an intellectual work such as the DVD for which it is the cause. It ensues, therefore, how the Court of legitimacy framed the case in terms of violation of the right to privacy and not – as wrongly supposed by Sony’s defense – to the image considered in itself.


Carolina Sconci