The production of a television drama concerning a well-known public figure may, under certain conditions, use that person’s name and likeness even without the consent of his or her heirs. The commercial nature of the work does not, in itself, preclude the application of the exceptions laid down in Article 97 of the Italian Copyright Law where the use of the person’s likeness also serves informational, educational or cultural purposes. This was clarified by the Civil Division of the Supreme Court of Cassation in Order No. 24401/2026.

The dispute concerned a television series focusing on the professional life of a well-known police commissioner. One of his heirs, who had not consented to the use of his father’s name and likeness, brought proceedings against RAI and the production company seeking damages. The Court of Rome awarded compensation calculated by reference to the so-called “price of consent that was not obtained”, and that decision was subsequently upheld on appeal. The Supreme Court of Cassation, however, set aside the appellate judgment and remitted the case for reconsideration.

The central issue addressed by the Court concerns the relationship between the right to one’s likeness and the freedoms of artistic expression and information. Article 96 of Law No. 633/1941 establishes, as a general rule, that a person’s portrait may not be displayed, reproduced or commercially exploited without the consent of the person concerned or, following his or her death, of the family members identified by law. Article 97 nevertheless provides for a number of exceptions, including where the use is justified by the person’s notoriety, the public office held, or scientific, educational or cultural purposes, subject in all cases to the protection of the person’s honour, reputation and dignity.

According to the Supreme Court, it is incorrect to assume that the existence of a profit-making purpose automatically renders the use of a person’s likeness unlawful. An informational, documentary or cultural work may be produced as part of a commercial undertaking and generate revenue without thereby losing its informational or cultural character. A distinction must therefore be drawn between the use of a person’s likeness essentially for the purpose of advertising or promoting goods or services and the commercial exploitation of a work that pursues an independent cultural or informational purpose.

This requires a case-by-case balancing of the competing interests involved. The court must determine whether, in the specific circumstances, cultural and informational purposes prevail or whether the use is instead predominantly or exclusively commercial or promotional. The Supreme Court criticised the lower court precisely for having treated the profit-making purpose as automatically prevailing, without carrying out the required balancing exercise.

The Supreme Court also addressed an issue of particular relevance to audiovisual productions: a television drama does not necessarily lose its cultural character merely because it contains fictionalised elements or scenes that are wholly invented. Freedom of artistic expression allows a historical reconstruction to be supplemented by elements serving dramatic and narrative purposes, including where those elements concern aspects that are not strictly related to the public figure’s professional life.

Here too, however, there is no automatic exemption. The court must assess whether the fictional elements are genuinely functional to the creation of the work and whether they distort the portrayal of the individual or improperly interfere with his or her identity, reputation or private sphere.

The ruling is therefore particularly significant for audiovisual producers, publishers and media operators: the absence of consent from the person concerned or his or her heirs does not necessarily render the use of the likeness of a well-known public figure unlawful. Rather, it requires a specific assessment of the nature and purposes of the work, the relationship between its cultural dimension and its commercial exploitation, and the manner in which the individual concerned is portrayed within the narrative.