Our firm successfully assisted RCS Mediogroup before the Italian Supreme Court in the lawsuit between Giovanni (Gianni) Rivera, RCS Mediagroup and RAI Radiotelevisione Italiana.

By Decision of 16 June 2022, the Court of Cassation, in fact, overturned with reference the decision rendered by the Court of Appeal of Milan on 14 December 2017, upholding our arguments.

The matter concerned the claim made by the well-known footballer Gianni Rivera of the alleged exploitation, without consent, of his image rights by some photographs reproduced in publications dedicated to the sport of football and published by RCS that portrayed Gianni Rivera in scenes of daily life and not in the act of sporting performance or wearing the uniform of his team (AC Milan or the national team). Those photographs were not offensive or improper, nor did they pertain to the intimate and confidential sphere of the person.

First the Court of Milan with a judgment of 9 February 2015 and then the Court of Appeal of Milan with a judgment of 14 December 2017 had held that the exemption linked to the notoriety of the sports personality Gianni Rivera was strictly correlated to the sphere of actual performance and that, therefore, images of the well-known footballer in scenes of everyday life and outside the football context in which the notoriety was realised could not be used without consent.

The Supreme Court’s ruling, in answering the central question of whether a person’s notoriety can be strictly limited to the narrow scope of the activities in which he or she first emerged, offers a detailed analysis of the legal rules on the right to image.

The Supreme Court states that it is not a question of an extensive reading of Art. 97 of the Copyright Law, but ‘of diagnosing and recognising the scope of the notoriety actually achieved by a public figure and the correlative scope of the derogation provided for by the law to the need for the consent of the person portrayed‘. The Supreme Court thus holds that “the correct application of the exemption of Art. 97 Copyright Law makes it lawful to disclose photographic portraits of famous persons not only when they are depicted in the performance of the specific activity that brought them to public notoriety (i.e: for the sportsman the competitive activity, for the singer the performance on stage, for the actor the acting on the stage), as too restrictively delimited by the Milan Court, but also when the photograph portrays them in the performance of ancillary and related activities, which fall within the cone of projection of their public image and therefore within the sphere of public interest dedicated by the community to their activity“… “On the other hand, the photograph of the person portrayed on private occasions, devoid of any connection, even indirect, with the activity that caused the celebrity and for which, quite legitimately, the well-known person has exercised the right to cloak his private sphere in confidentiality, by means of a jus excludendi alios, remains outside the scope of the exemption“.

The Supreme Court has thus established the following principle of law: “The exemption provided for by Article 97 of Law 22.4.1941 no. 633, according to which the consent of the person portrayed in the photograph is not necessary when, inter alia, the reproduction of the image is justified by the notoriety or public office covered, applies not only when the well-known person is photographed in the context of the activity from which his notoriety has arisen, but also when the photograph portrays him in the performance of activities ancillary to that activity or in any event connected with it, subject, on the one hand, to respect for the private sphere in which the well-known person has exercised his right to privacy, and, on the other, to the prohibition of the commercial exploitation of another person’s image, by third parties, for the purpose of advertising or propagandising, even indirectly, the purchase of goods and services‘.