The use of the image of a famous person is lawful if it shows them in activities connected to their notoriety

In a case concerning a well-known football player, who later on became a politician, Italy’s Supreme Court of Cassation – after an attentive analysis of the facts of the dispute – quashed the judgement no. 5246 of December 14, 2017 issued by the Courts of Appeals of Milan confirming the decision of the Court of Milan of February 9, 2015, which considered unlawful the diffusion of the image of the football player taken in normal clothing, and so not in a game setting.

The point of discussion is the debated topic on how to balance the public interest to information with the legitimate right of the famous, or very famous, person to protect their image distributed without consent.

In the case under exam, a publishing company published some pictures showing the football player not in a game setting. The defense of the football player stated that the diffusion happened without his consent and for commercial purposes, since the publishing company had pursued profit through the information activities connected to this diffusion.

On the other hand, the publishing company contested these statements by saying that the photos under exam were shot, at the time, with the consent of the player and that they were published for news purposes only.

The difference, in the opinion of the Supreme Court, between lawful or unlawful publication lays in the meaning of notoriety pursuant to art. 97 of Law no. 633 of April 20, 1941. As a matter of fact, this law allows the distribution of photographic portraits of a well-known person, without consent, when such distribution is justified precisely by the notoriety of the same.

To the Civil Supreme Court, the notoriety of a person cannot be limited to the narrow context of the activity from which it initially arises, especially if the well-known person belongs to football, show or entertainment environment.

According to the Italian Supreme Court of Cassation, when the publication of the representation of the famous person does not hurt their right to image and occurs respecting their private life – in case the famous person exercises the right to privacy – the publication is lawful even if the representation depicts the famous person in activities only connected to the one close to the sportive context which made them famous, such as a photo of the football player which, once taken off the sport clothes, raises the award won.

In the case examined, the image of the football player was used to communicate the information implied in the image which is to make the public know how that famous person celebrates the awards won, how he communicates with the press and with his fans.

The entrepreneurial nature of the activity carried out by the publishing company, which as much for the defense of the football player as for the Milan Court of Appeal, would have been essential to qualify the use of such image for commercial purposes as unlawful, in the opinion of the Italian Supreme Court is not decisive.

The Court argues, in a very agreeable way, that even someone acting with commercial aims may publish a photograph with informational purposes if the publication is pursuant to art. 97 of the Law no. 633. The publication of photos should be otherwise completely denied to the detriment of the news public interest.

Therefore, the Court suggests to distinguish the professional nature of the news activity conveyed by the publication of a photo from the commercial purposes of the use of the same photos for which the consent should be always necessary, but this did not happen in the case examined.


Maria Luisa Milanesi