By Elena Varese, Fulvia Cosattini and Valentina Mazza
Last July, with “The Dawn of Romanity” haute couture show against the Colosseum backdrop, Fendi paid tribute to its longtime Creative Director Karl Lagerfeld, with 54 outfits to represent his 54-year tenure at the maison. But who owns the rights in the image of the recently deceased iconic fashion genius?
According to some leaks, the worldwide famous designer Karl Lagerfeld, before his death, would have left the entirety of his heritage to his beloved cat Choupette. This is not the first time a person decides to nominate his pet as the universal heir: from Countess Karlotta Liebenstein to Alexander McQueen, leaving everything (or a big portion of one’s assets) to a pet has become a sort of trend for many celebrities… But what are the legal consequences in relation to the rights of image of the celebrity according to the Italian law?
First, it shall be noted that, according to the Italian Law, animals cannot be appointed heirs, given that they are not a person, either natural or legal. This obstacle, however, may be easily overcome by appointing a person as heir, with the obligation to take care of the pet.
Further, pursuant to Art. 96 of the Italian Copyright Law no. 633/1941 (“ICL”), the post-mortem protection of the rights related to the image of the deceased person is attributed to some of the closest relatives, namely the spouse and the children or, in their absence, parents, or, in the absence also of the latter, brothers and sisters, or, finally, in lack of all the aforementioned, ascending and descending up to the fourth degree, regardless of the fact that they are, or not, heirs, unless otherwise expressly established by the deceased.
Similarly and always with regard to image rights, Art. 8 of the Italian Intellectual Property Code (Legislative Decree no. 30/2005) also provides for the possibility of registering the portrait of a person as a trademark after his death, once obtained the consent of the spouse and children, or, in their absence, of parents and other ascendants, or, in lack of the latter, of the relatives up to the fourth degree.
In light of the above, it seems that, even if Choupette was nominated Karl Lagerfeld’s universal heir, it would not automatically become also the assignee of the rights on his imagine, given that they belong to his relatives.
However, the ICL set up a different treatment for – on the one hand – the moral rights and – on the other hand – the economic rights related to the image of the deceased. In fact, while under Art. 23 ICL the post-mortem protection of the moral rights shall be automatically attributed to the family members (in the order indicated above) regardless the fact that they are also heirs or not, according to Art. 115 ICL the economic rights, instead, shall be directly assigned, unless the author has otherwise provided, to the heirs (i.e. Choupette).
To sum up, while the moral right related to Karl Lagerfeld’s image shall belong to his relatives, Choupette, becoming the universal heir shall also acquire the economic rights on the image of its owner.
That said, the issue of the use of the image of Karl Lagerfeld and famous people in general arises in relation to the commercial purpose of such use: you just have to think to Burberry, sued by Humphrey Bogart’s heirs in the United States for using an image of the actor wearing the iconic trench in the movie Casablanca on its website or Mattel sued by the Frida Kahlo Foundation in Mexico for marketing the Frida Kahlo Barbie or even Ferrari, sued by the family of Steve McQueen before the Superior Court of Los Angeles, for naming a car model with his name.
In fact, Art. 97 ICL excludes the need for the consent of the person portrayed or of his heirs when the reproduction of the image is justified by his notoriety.
However, Italian case law has clarified that this exception is limited to needs of public information, or in any case, of collective interest, and not also to the exploitation of the portrait of famous people for advertising purposes (see also, Italian Supreme Court, 2 May 1991, no. 4785 and Italian Supreme court, 13 April 2007, no. 8838).
Recently, the Court of Turin convicted a company to pay damages to Audrey Hepburn’s sons for the unauthorized marketing of their mother’s image on T-shirts: also in that occasion the Court highlighted that Art. 97 ICL shall be strictly interpreted, as an exception to the general rule on image rights.
Therefore, the fashion show hosted by Fendi in its honor could probably be said to fall within this exception, as a tribute to the long-lasting relationship between the maison and the designer, but anyone else wishing to use Karl’s image for any commercial purpose shall ensure his heir’s authorization, which in this case may be more complicated than usual… We all know Lagerfeld’s extravagant personality… Could leaving everything to its cat be its way to prevent anyone from using his image after his death?