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GSLTR Global Sports Law and Taxation Reports Contents Is there such a thing as sports law? Prof. lan Blackshaw Is there such a thing as EU sports law? Prof. Stephen Weatherill Article 17 OECD Model Convention; Proposed amendments to the Commentary thereto and the reactions thereto Dr Rijkele Betten Comparative surveys on image rights NOV'10 Sports image rights under Italian law An overview of principal legal issues involved in the commercial exploitation of the image rights of top athletes, clubs and sports associations. Luca Ferrari SYNOPSIS ‘This article illustrates and defines, albeit not exhaustively, the content and scope of image rights exploitation in the world of sport and under Italian Law. Firstly, we explain how, under italien In- ternational Private Law, independent of the law applicable to the contract concem- ing the commercial exploitation of a per- son's identity, the national law of such per- son would always apply to the nature and content ofhis image right, ‘Thereafter, we analyse the nature of im- age rights. In Italy, as by and lerge in all continental Furope, the right on one’s im age is, by its nature, a right of personal ity, ie. a right per se, “against the world” ‘or “orga omnes”. In this section, we also summarize the applicable regutation, from statutory rules and remedies provided for the “erga omnes” protection of the rights fon one’s own image to the specific regu Iatory framework concerning athietes’ and professional footballers” image rights mar keting, focusing on the athlete's right to self-marketing and the resulting possible conflict with the advertising of the team or sports organisation to which the athlete belongs. After this survey of the Jaw, we will con- conttate first on the legal and practical problems related to the “commercialize tion” of such personality rights, particular ly in ight of Helin jurisprudence’s quali cation thereof, This will include reference to: schemes and arrangements involving rights of personality; forms and limitations of testimonials consent to the use of his image, and; the legal instruments which accord protection against withdrawel of consent 1. Application of Italian Law Ialian Law and a number of international conventions * recognize the so-called “d= itt della personalita” -in English “person- ality rights”- meaning rights that are inber- ‘eat and proper to the human being, of in tho words of the Black’s Lew Dictionary, ONobot “primal rights pertaining to men [...] en Jjoyed by human beings purely as such, be- ing grounded in personality” (Black's Law Dictionary, sixth edition), Needless to say, although Mr. Black in his day did not find it fitting to express, the concept applies equally to women. Life, personal freedom, health, name, image, honour, dignity and reputation, education, information, pri vvacy, personal identity, are all wrapped up in the notion of “personality rights". These righls are not just “absolute”, imposing an obligation of respect against the world, bout, because of their very nature, they are also privileged, inelfenable, and non as- signable, Pursuant to art. 24 of Italian Private Inter national Law (Law 31 May 1995 n, 218 or 218/1995) an individual's personality rights are defined and riled by his/her na- tional lew. As to the right of one’s name, the same rule was affirmed by the Mu- nich Convention of 5 September 1980 However, under the second paragraph of art. 24 of Law 218/1995, consequences of the violation of such personality rights are ruled by “the Law applicable to civil liability”. The latter is identified pursuant to art. 62 of Law 218/195 as the Law of ‘the country where the tort was committed where the injury was suffered (latin: dex loci delicti commissi). Alternatively, if the country where the injury was suffered is different from the one where the fact caus- ing such injury took place, at the election of the injured pany, the Law ofthe country where the injurious act was performed ca ‘be applied. Therefore, in the case of abu- sive commercinlisation of one’s image, the les loci delicti commnissi (the place where the injury was suffered) is presumably the country of domicile of the injured party, but, if the unauthorised publication of his! hor name or picture originally took place in another country, the plaintiff may ask the relevant Italian court to apply the Laws of such different country. In conclusion, Italian Law is applicable, ‘pursuant to Italien Private Intemational ‘Lavy, if an illegitimate act of exploitation, November 2010. of acelebrity’s imege is committed in Italy (italy being the place where the relevant advertising kas been created, or where the relovant media editor has its registered of- fice) or if damages have occurred in Italy (taly being the place -or one of the places Where the injured party lives and where the newspaper, Web page or TV commercial san be read or viewed, respectively). 1nintermational image licensing contracts, tho parties may choose the Law applicable to the agreement and the ensuing relation ship. Under Italian Private Intemational Law, in the absence of a choice, the gov- cmning law is determined pursuant to the Rome Convention of 19 June 1980 On The Law Applicable ‘To Contractual Obliga- tions (now known as “Rome 1”) © Hov- cover, the legal recognition and content of the “image” as wel as the nature and con~ {ent of related rights (nate andidentity) are still ruled by the laws of the colinty of citizenship ofthe ficensor-testimonial. ‘Therefore, whenever the contract concerns the use of an Italian citizen's name and image, Italian law inovitably applies (at loast) to determine the nature and content of licensed rights, ic. the object of the lie ccense including, most important, whether such rights are capable of being licensed cr even made the object of any contractual obligation, 2. The Nature And Content OfTmage Rights Under Italian Law ‘There have been numerous definitions offered for the legal nature of the image right. According to prevailing opinion, the image right is the affirmative version of the right of privacy. From this perspective, the image right is articulated as the right of a porson not to have his image seen by otters; and this situation is violated by the arbitrary view or exposure ofthe image it- self, “The content of this right is concretely ex- ‘pressed in tho “affirmative” notion that a ‘person may choose to appear according to hisher own needs and requirements. ‘This right exists indeperidently as a right inherent in a person, fulfilling one’s par- ticular identity, ie. charectristics and qualities. It ean, therefore, be inferred that it enjoys an autonomous status and legal validity, Above all, such « tight is recos- nised and protected quite apart from the existence of an infuria: its use by others {is prevented without the owner’s con- sent as a matter of principles its therefore protectable even in the ease in which the reproduction and disclosure of tho image ‘eause no offence or harm tothe person. ‘Third patties are prohibited from publish- ing a person’s imege. Ono could say that the regulation relative to the image has been drawn up in line with said prohibition and is aimed at ensuring an individuals entitlement to not having his features used by others, except in those cases foreseen by law. ‘A person's image inevitably is recognised by third parties as one docs not enjoy the right of not being observed. Awareness of another’s image is legitimate activity and cannot be forbidden. But itis forbidden for third parties o use the image of another or to exploit those features against that per terests (not limited to pecuniary) and will. However, as we will explore, un der specific cireumstances a limited use by ‘hind parties is permitted, without the con- sent and oven in the face of opposition of the right holder, 3. Applicable Legislation ‘Under Italian lay, the protection reserved for the image is derived from the joint pro- visions of Article 10 of the Civil Code and Article 96 of the law on copyright (Law No. 633/41). - ‘The Civil Code establishes the principle that if an image is displayed or published ‘except when consented by law (the excep tions are listed in Article 97 of Law No. {633/41}, ofits display causes prejudice to the dignity and the reputation ofthe person ‘concerned, the judicial authorities may or der the abuse to cease and award compen- sation for damages. ‘This rule is essential with reference to the instruments available ageinst abuse of the image. Article 96 ofthe law on copyright, in turn, completes the discipline by stating that a petson’s likeness cannot be displayed, 1e= produced or sold without the latter's con- sent, apart from the exceptional circum stances listed by the following Article 97, 28 Generally, consent of the image holder must be given, even though tacit consent or even presumed (implied by behaviour incompatible with the desire not to grant Consent) is sufficient. With regard to the necessity of granting consent the Corte di Cassazione has estab lished, thatthe reproduction of the image of a famous person, created for advertising, purposes without the latter’s consent, con= stitutes an injury to an individual's exelue sive rights over his own likeness ? ‘The principle that consent (whether explice itor tacit) must be specifio, now appears to be a precept established by the decisions of the courts in the sense that the image cannot be used in & context of for purposes different from those to which the con- sent itself refers, The reason why consent must necessarily be limited and specific is clearly deduced in a judgement handed down by the Rome Court’, In that ease, the Court declared that « person's subjective situation may change, perhaps rapidly, and the publication of the image, which at one time might have seemed to be consistent and adequate, may then no longer comply the different requirements and con- notations of the individuals personality. Furthermore, the efficacy of the consent nut be Kept strictly within the limits in \hich the consent was granted forthe dis- semination (defined as the objective limit), and exclusively conceming the individual ot individuals to whom it wes granted (he so-called subjective limit)®, Article 97, paragraph 1, of the Law on Copyright provides thatthe consent of the image holder is not required when repro- duction is “justified by the fame or by the public office covered by the latter, fr jus- tice and police requirements, for scientific, educational or cultural purposes, witen the reproduction is connected to facts, happen- ings and ceremonics of public interest or, in any ease, conducted in public”. Howev- er, the second paragraph of Article 97, lm its the scope of the frst paragraph, stating that “the likeness cannot be displayed of put on sale, when ts display or sale might ‘cause prejudice to the honour, reputation or dignity of the person represented” With reference to famous people, tivo con ditions must apply in order to permit use of their image by third parties without their ‘consent: besides the person being famous, the reproduction of the individual’s image ‘must be connected with facts of public interest or which have occurred in pub- lic. Tho person’s fame must, therefore, bo Novernbar 2010 combined with an informational purpose, ‘or rather, publicised facts, Ik should be stressed, however, that the provalence of public interest (or rather, cu riosity) is not absolut It must give way atthe threshold of undesirable indiscretion ‘concerning any person's more intimate, personal circumstances, oven if that per- son is famous, In other words, the rights of the press and those of privacy must be balanced. ‘This is often not the case in re- lation to scandal or gossip-driven press. Under privacy and professional mules, photographers are only allowed to portray ‘celebrity in private if, aftor having iden- tified and qualified themselves as well as explained what use they intend to make of the pictures, he or sho grants consent to the specific use. Absent such consent, if publi- cation of private images isnot inthe inter- est of the-more or less- famous person, the latter may obtain both interim measutes to avoid publication and compensation for damages", ‘We now retuim to the hypothesis of a per- son’s image used for advertising, The provisions contained in Articles 96 of the Law on Copyright discussed supra prohibit reproduction or exploitation of a person's image for commercial purposes, without their prior consent, and Article 97, para raph 2 protects the dignity and honour of the person. Those limitations are not dis- placed by the broad exception in Art. 97, paragraph 1, regarding the public’s “right to know”, As mentioned, ts provision al~ lows the publication of the likeness in the case of an individual's fame and for facts ‘of public interest. However, the public in terest cannot, indeed, be identified with the motives of a company to advertise fis product. Therefore, the reproduction of the likeness cannot be justified either by the fame of the person o the public interest in the facts in which it is involved, ifsuch, reproduction is exploited for commercial purposes. This implies that, where con- seat is required for the dissemination of a person's image for commercial purposes, ‘the consent of the individual concerned is, always necessary, with no exceptions: the need of authorisation in advertising applies ‘equally to every image holder, regardless of the degree of fame enjoyed or the inter est the public might have in the events in which that person is involved. In this respect, itis worth noting the or- der handed down by the Court of Milan"* ‘on 27th July 1999, toa petition for a tem- porary injunction. In this case, the peti- toners, afew players of AC Milan, com- CGiobal Sports Law and Texation Reports plained about the abusiveuse, for purposes of profit and not by way of information, of their name and image within a football calendar aimed at the supporters of AC Milan and applied for an order prohibiting, the production and marketing of objects bearing their own image or namo. The op- posing party attempted to have the matiet fall into one of the cases contemplated by Article 97, paragraph 1, of the copyright lav, claiming fame asthe justification, ‘The Court replied thatthe “fame to which Article 97 refers conscats to the use of a famous person's image only for informe- tion purposes and is, certainly indifferent to whether this also happens in the pursuit of profit", But in the case in point, it con- tinued, there could be no doubt whatsoever that the purpose for which the petitioner's, mage was used was only that of profit, in consideration ofthe fact that the image ap- plied to objects promoted forsale, without any news or information being offered. ‘The use of well-known people’s images ‘without consent, or outside situations peo mitted by lavy, represents an unlavsful act from which lability for damages of a mor al and pecuniary nature arise. ‘The pecuniary damage refers to the harm caused to the (potential) economic exploi- ion of one’s own image and the reduc tion of its commercial value, as well asthe damage caused by the relevant exploite- tion of another's fame. Quite clearly, one should have a public image (svhat the US Law defines 5 “right of publicity”) to claim this kind of damages. ‘The moral (or punitive) damage that is caused by the manipulation or inappropri« ‘ate use of a person’s image stems from a criminal offence, which consists in the in- vasion ofthe individual's privacy and free- dom to control and use hers own image. ‘The specific means of protection is provide ed by Article 10 of the Civil Code and is characterised by a restraint injunction (“in- {bitoria”) and compensation for damages. 4. The Athlete's Right of Self-Market- ing ‘The right of self-matketing, or rather, the right of an athlete exclusively to use his ‘own image for advertising and commercial purposes, leads to a series of problems in- hhetent in the relations between the sports association # to which the athlete belongs and the athlete himself, ‘To begin with, an individual athlete's use of his ovn image for advertising purposes ONoiot ‘would be unhindered, except when the ath- Iete's image includes the symbols, colours or trademarks ofthe club to which he be- Tongs ®, Its in the interest of sporting association to gain the maximum profit from the com- rercial exploitation ofthe sports activities performed by ther athletes, in such a wey as to finance their various initiatives and undertakings. On the other hand, the athletes are equally interested in freely using their own image for advertising purposes and to gain excli- sive advantage of the profits eamed inthis ‘way. Whose interest is paramount? The sporting associations are fiee to decide if and how they wish to be involved in adver- tising-type activities and, closely connect- ed to this theme, if and with whom they should execute sponsorship agreements, in such 2 way 2s to promote the activities of all the essociate athletes. The athletes, for their part, are entitled to appeal to their professional and contractual freedom, ‘The right of a sports association to limit the advertising activities personally under taken by the athlete is subject to the fol- lowing: = ‘The association must be clearly author. ised to do so by the provisions con- tained in its Articles of Association; = The restrictions can only apply in rela- tion to the competitions in which the association isthe organiser or co-organ- ise, ~ ‘The association must comply with the principles of fair competition, and ~ The association must distribute at last part the profits acquired tothe athletes One can vigorously question the ptoprl- ety of restrictive clauses bearing upon the athletes’ image rights in the Articles of As- sociation of the sporting federations and organisations when registration or mem bership is indispensable to being able to practise the specific sporting discipline. ‘Tae efficacy of the organisation’s rules should be enervated if, atthe least, the At tiles of Association have not provided the participation to their regulatory (and argu- ably executive) bodies of a representative from among the athletes. ‘The dichotomy between the rights of sports orgenisations and the rights of the member athletes apply to the relationship between players and clubs as well ‘These issues never cease to emerge in all sports at various levels and in various Novembor 2010, countries, showing how difficult itis for a club oF federation to control or limit the players’ right to exploit their image. This foreclosure is clearly untenable in rela- tion to sports equipment, 2s is the case of shoes, which is not an essential part of the ‘team’s uniform: shoes are not necessary to distinguish teams and athletes on the pitch, It then all comes down to an economic power struggle between the federations! clubs and the players, and between respec tive sponsors. When it comes to mainly amateur sports, itis unlikely for athletes to be offered individual sponsorships that ‘would justify a confrontation with the fed eration and the ensuing risk to be banned from relevant intemetional competition. On the contrary, top athletes running for the medals as well as rch and famous foot. ball players have it usually their way, with their federations either closing their eyes “to the breach of the relevant rules ot ro- forming their rules altogether to allow for a combined collective and individual com- mercial exploitation. In this respect, the German Football Federation’s imposition of Adidas boots on all players of the Na- tional team is a rather festering exception. Bat fo whom do players” image rights truly ‘belong? Who is the owner of the television tights tothe team’s competitions and train- ing? Within which limits ean the elu use the image of one or more players or that oF the whole team in its own marketing and merchandising activities? Iisnormally held in Italy that some of the rights used by football clubs are acquired almost automatically through the Conven- tion in force on the regulation. of adver ing and promotional activities, which was executed between the Italian Football Players Association - Associazione Ital- inna Calciatori (ATC) * and Professional ‘Leagues (the Lega Nazionale Profession- isti and the Lega Professionisti Serie C) in 1981. On the basis of this Convention (as later amended), the players, in considera- tion for the granting of their image rights ‘as members ofthe team, would be entitled, unless waived, to a part ofall the profits derived from the promotional, advertising, and commercial activities ofthe elub using. ‘or involving the players" image, However, it is customary for the partes of playing contracis to tick the box indicating that such additional compensation has been in- cluded in the player's salary, Bat the Convention tramples the concepts relative to ownership of the rights. In the fist place, it wrongfully embarks with the pre-supposition that the football players 29 image rights are not freely exploitable by the player (thi i inferred a contrat from Articles L and 5). This pre-supposition has been denied, over the years, by the con- stant behaviour of elubs and players and the decisions ofthe courts, Its, indeed, an ‘error that could eviscerate the entire Con- ‘vention: Moreover, numerous doubts arise both as fo the efficacy of the Convention ‘towards individual players, especially if they come from foreign federations and are not registered with the AIC, as well as, to its hallmark as an agreement in restraint of trade, Furthermore, over the years many of its provisions (in particular Articles 4, 5,9, 10, 14 and 15) have never been ap- plied, which leads to the conclusion that they are desuetude, From the invalidity or inefficacy of the Convention, it may fol- lov thatthe clubs are not entitled to under- {ake advertising activities, which, in some ‘way, imply the use of the players’ image, ‘even as included in the feam’s image. And even if one wished to hold the Convention as totally valid and effective, contrary to the evidence indicated above, players with sufficient economic power or draw can refuse to have the customary wording add ‘ed to theirplaying contracts, by which thoy renotihge their participation in comme: revenues deriving from any utilization of their image. ‘They would then be acknowledged 10% ‘of such revenues, In fact, income derived from the licensing of audiovisual rights ‘would not acerue to those revenues, since team sports broadcasting rights are now statutorily recognized as belonging jointly and exclusively to the clubs. Nevertheless, ‘one can easily understand what disrupting ‘effects would result if this issue, which to date has never been raised, were to burst ‘onthe scens. Tn such a way as to ward off these risks and absent more cogent provisions to be included in the new collective bargaining agreement curently under negotiation - Id be opportune for the club to ex- tly agree the acquisition of its reg tered players“ tonsent to the commercial exploitation of their image, thus insuring, itself against any possible dispute as to its entitlement to the full income generated by licensing and a&p activities. In com- pliance wih the principle of fair and pru- dent administration, the club should have an executed agreement specifying that the club in consideration ofa defined payment is entitled to use, in all lawful forms, the footballer’s image and personal informa ina total tearn image and to commer cialize official jerseys’ replicas bearing the it wo 30 player’s name. This at least until such pro- visions will not be explicitly included in the players’ standard contract. Of course, even in the absence of specific authorization pursuant to the collective bargaining agreement, the use by the Club ‘of the team’s image or that of any group ‘of players while porforming their profes- sional training and playing activities could be considered as implied ad inherent in ‘the employment contract. In shor, it could be argued, that upon engaging the player's services for the purpose of organising, sports events, the club also acquires the right to use his image as part of th team’s image for the very business parposes served by such engagement On the players? side the exploitation of their own image for advertising purposes (elf-marketing), would be quite. unhin- dered, except where the image exploited by the player's sponsor inciudes the sym Dols or trademarks of the chub to which the player belongs « 8. Revocability of Consent to the Use of mage Rights By 1991, the Corte di Cassazione (highest Italian civil and criminal court) had con- firmed and explained that celebrities have an exclusive “tight of publicity”, therefore an exclusive right to the commercial ex- ploitation oftheir image. Jn 2004 the issue was farther defined, again by a landmark decision of the Corte i Cassazione ", where it was clatified thatthe right on one’s image is inherent to the person and, as such, is absolute (erga ‘omnes), indisposable, non-assignable and non-negotiable - something that does not quite fall into the definition of a “tight of publicity”. Nevertheless, tho commercial or, broadly speaking, economic exploits. tion of an individual’s image is still pos ble by the “owner” or by @ third party with the owner’s permission. Consent, how- ever, may not be the object ofa contractual ‘obligation (since the right on one’s image is “indisponibile”, ic. not negotiable, but, as an act of forbearance, may well be re- smunerated. ‘Asa spontaneous and non-binding expres- sion of tolerance, for consideration or not, consent to the exploittion of one’s im- age may be revoked at any time, In case of unjustified withdrawal of consent (e.g. contrary to expectations based on conduct, statement or even duly signed contract), there is no contractual lability towards the “licensee”, but rather, arguably, a ibility November2010 in tort deriving from the abusive exereise ‘of the right to deny or withdraw permis- sion. The foregoing principles established by the Corte di Cassazione’s decision of 2004 wero later confirmed by the same Court in a second decision dated 19 No- ‘vember 2008 (n. 27506). ‘Tho Court's 2004 statement of the nature and scope of the image-tight is also zel- evant in that it confirms that the unauthor {sed uso ofa celebrity's image for commer- cial purposes is i breach of his/her right to * privacy and publicity. As noted, the Cassasione’ interpretation ‘of the nature and content of image rights poses a problem in relation to the of fectiveness and stability of endorsement and sponsorship contracts. As explained above, an Iilian court will inevitably ap- ply Italian law to establish tho logal con- tent and nature of an Italian celebrity's im- age, including when such image (hishhet namo, portrait, picture, voice ete.) is the ‘object of a sponsorship or, broadly speak ing, licensing agreement that is subject to a foreign law. Itis also possible that inter- national private lew rules of the chosen (foreign) jurisdiction require application of the national (Italian) law of the testimo- niaVathlete to define the content and natare of the personality rights licensed under the relevant sponsorship contract. This is defi- nitely the case among EU jurisdictions. Since Halian taw does not allow person- ality rights to be licensed under contract, finding a way to protect advertising, com- ‘munication and merchandising invest- ‘ments rests mainly on careful drafting of the relevant agreements. Based on the limitations to the use of per sonal identity as a registered trademark, as ‘we shall explain, transforming the image licensing aspect of a sponsorship or en- dorsement contract in @ trademark licens- ing is nota viable solution. However, whereas the testimonial-licensor ‘may revoke permissfon to use his/her pic~ ture or name at any time, without notice snd without incuzring in any contractual I- ability, he/she may be held liable both for breach of contractual obligations to per- form specific activities -snch as exclusive use of endorsed products, participation in public ovents (e.g. celebrations, con- ventions, press conferences), posing for photographic shootings, acting for video recording ete.- as well as for breach of negative obligations, like that of abstain- ing from use or promotion of competitive products or brands. By connecting breach- Global Sports Law and Taxallon Reports cs of these obligations to (reasonably) heavy penalties -which is allowed under Italian Lav, contractual Itbility could be added to a kind of Fiablity in tort, which is applicable, as we shall sce, whenever the athlete walks out of his sponsorship con- tract prematurely -by withdrawing penmis- sion tothe use of his image, Assuming personality rights may not be the object of a contract, what would be the consequence of a sudden withdrawal of consent by the testimonial to the eom- mercial exploitation of ‘hisfher picture in the course of an advertising campaign midway through the relevant sponsorship agreement? Here, in action to contract al responsibility for possible violations of related, ancillary or consequential contrac tual obligations as explained above, the “abuse of right” principle would enhance tho sponsor's claim for damages. As & ‘general principle of italian jurisprudence, ood faith should always accompany the exercise of a right, wheter such right stems from a contract or dietly from the Jaw. An action that is permitted ought to be performed, wicrever possible, without Wows 2 CBA Studio Legale Teibatari, Milan 3 Bg, art 6 oftho civil code: ight to ones mame causing unnecessary and deliberate sac- rifice to properties or legitimate interests of others. A permission (license) to use an athlete’s image is normally included -albe- it occasionally, as the Corte di Cassazione would have it- in a sponsorship contract ‘An unreasonable, unanticipated and frivo- lous revocation of said authorization to the commercial use of the name, picture and {dentity, when the owner of such personal ity rights is aware of the intended or actual use thereof, will expose hinvher to lisbil- ity Gn tort) forthe damages suffered by the ‘g00d faith bencficiery of such consent. As- sessment of damages would still follow the principle of in infegrum resttutio, includ ing both expenses sustained (sponsorship fee and related promotional investments) ‘and loss of gain whenever such loss is ‘an immediate and direct (., predictable) consequence of the unlawful act, or ever ‘beyond such limit if withdrawal of consent ‘was soley intended to inflict damage upon the sponsor. In the face of this late jurisprudence, one could think of the possibility to register @ person's image and name as a trademaric, ‘hich could then be the object of a licens ing contract. Indeed, @ name and an ime age, including the picture of @ person, can be registered es trademarks to distinguish products or services (art. 7 of the Code of Intellectual Property — Codice della Proprieit Industriale). However, the in- dividual or entity applying for trademark registration must have at least the intention to use it in the manufactoring or trading of products or in the provision of services (Ant. 19 of the Code of intellectual Prop- erty). This last specification scts a clear Fimitation to the possibility of substituting, ‘an image right licensing with a trademark licensing in the context ofa sponsorship ot endorsement relationship. Rather, a sports personality’s registered name or image can. ‘be used as a trademark in connection with merchandising activities, to brand a per- Aarne or clothing line, whether produced by the athlete’s company by any other company under the Athlete's trademark Jivense. m 4 Universi Decleration of Human Rights doted 10 December 1948; Iternstionl Covenant on Civil and Poltea! Righs dated 16 December 1966; Convio for ‘he Protection of Humen Rights nd Fundamental Freedoms dated 4 Noverber 1950, Milateral convention on the law applicable to surnames and gen names. Concluded ot Munich on 5 September 1980 The Rome Contention of 1980 i epplcabe esa genera ule of Kan ntratonal aw and thus nt linitedto the EU member States. The Convention is eureaty applied eso urform set of oles of private international ew axes the EU jursitions as EC Regulaon 59/2008, Unde hes us, absent contac choice fie law most likely fo apply to an image ceasing egreement thao the cout of domicile of the testimonial (service provide) under at, pa. LB) or a4 pa 2, 1 Cussazions Civile Sez. I, 2nd May 1991 No, 4785, § Gato Soc. LaRepubbliexed, Tibanale dt Roma, 3st October 1992. ‘Geely, the unertalagy over he objctive and subjective lint to consents greater when its tact or rested. In these instars, it sup te the judge to condoct the inquiry a 0th astesment of the imi, A jdgement sued by the Rome Cour (Rode v.Tiburl and oter, Pru di Roma, 16th ne 190) esabished thn inthe absence of exp defined consent ofthe Individual 0 the isclosureof hs image, the authorise ranted by Ue party covccared, having not been Timid in ine or eonsttns, “shall be understood o be without ny limition and subordinate only othe erteron of so-called foreseeable ws, excluding any se ‘hat might harm the dignity, honour and reputation” Js rredies may bo requested bot unde privacy reglstions, in font ofthe Authority forthe Protection of Privacy, a wel as une art 10 of he Civil Code (cal 96 oft Law on Copyright, in ron of ie oxdinay court. 1 Weah , Soo. For Service and FP, Tibunale di Milne, 270 July 1999. Sport ganisation is utdestne her to imply the oreisationt! boy ofthe discipline that the ahlte competes in Vidi, Soil sprtve, page 27, quoted inl conto di sponsorzaeions spotva in Avid moore eallithsprtve: problematic gdh, edited by ivi Bota, Padova 2002, page 152 and following. 14. Sueh panelpatin i, for exemple, foresecn in Hal toy by esson of he Itaan Legislative Decree No, 24279 (the Melace! Deore) both with reference othe ‘National Olympic Comite = Comitato Olimpieo NeenaleTaliano (CONT) as wel es with eftrence tothe various sport federations (for example, th Feder: ne Hliana Gieoco Calcio FIQC). ‘Ar. 25, paragraph 2 ofthe AIC’ Ales of Assocation has foresee ta hose footballers who wish to join ae obliged to exsign to tho easocition, withovt say teraora it "the rights o use their likeness inthe casein whieh the likeness i played, reproduved or sld together with orn concurrence with that of ther fboteallers ai ay ese, hia the ambit ofthe commercial exploitation that refers tothe ence category”, These ze, cll, restitons dat realy inde the pont of exploiting ones inmge rights, (Giorgio Rest, Diritoalimassgine, right of pblicty e dsipin atts, n Rivsia di dirt sporvo, Apcle-Gigao 1957, page 381). As ise i being weir, negotiations are underway between te AIC and the two top Tata Leagues forthe desiiin of the ner collective agreement and ‘elated standard paying contact, ‘Vdimi, Socetsportive, page 427, quoted la IL eontato di sponsrizantone sportia in Ativith motor eatvt sportive:poblematcke gic, edited by Carlo Botta, Padova 2002, page 152 end following, ™ Conte ei Casezione, 17th Febroary 2008, n. 3014 ONobot November 2010 at