The use of a well-known character’s image in a television drama does not require the consent of their heirs when the cultural and informative function of the work takes precedence over its commercial function.
This was established by the Court of Cassation in its judgement No. 24401 of 3 August 2026, which settled a dispute brought by one of the sons of a well-known Commissioner of Public Security, from whom consent had not been sought for the use of his father’s name and image in a drama series.
In principle, the use of another person’s likeness requires the consent of the person depicted and, following their death, of the persons specified in Article 96 of the Copyright Act (namely, first and foremost, the spouse and children). The principle of consent is, however, subject to certain exceptions where the use of the image is intended to safeguard interests deemed to be of greater importance than those of the person depicted. As far as the present case is concerned, Article 97 of the Copyright Act provides that consent is not required where the reproduction of the image is justified by the public profile of the person depicted or by scientific, educational or cultural purposes.
The underlying premise of the first exception is that the use of a famous person’s image without their consent is lawful only when the public’s right to information takes precedence over their right to privacy; that is, when such use is necessary to visually document news concerning them which is of public interest.
It follows that the use of images of a well-known person for promotional purposes does not fall within the aforementioned exception.
In the case in question, the Rome Court of Appeal (upholding the first-instance ruling) had upheld the claims of the heir who had not given consent, holding that the commercial and profit-making aims of the drama series were such as to preclude the existence of any informative or educational-cultural purposes, with the consequent inapplicability of the aforementioned justifications.
The Court of Cassation, however, did not agree with this approach and held that the existence of a profit-making purpose cannot, in itself, preclude an informative, educational or cultural purpose. Indeed, even the production of a documentary of a historiographical nature could be combined with the pursuit of a business activity (which is generally aimed at making a profit).
In the Court of Cassation’s view, therefore, the Court of Appeal should have struck a balance between the competing cultural-informative and commercial functions, ruling out the applicability of the justification under Article 97 only where the latter prevailed.
In the present case, according to the Court of Cassation, the inclusion of fictional elements did not compromise the educational and cultural aims of the drama series, which retained its nature as a vehicle for providing information on the character of the Commissioner, his innovative investigative methods and the main cases he dealt with. Furthermore, as a work belonging to the genre of television drama, which also aims to entertain the public, it cannot avoid including fictionalised elements of the characters’ private lives.
(Fabrizia Serpieri)
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