As discussed in the first installment of this two-part post, the Serbian media reported in May 2012 about a book authored by an anonymous Serbian writer, entitled “Kad porastem biću Nole” (“When I grow up, I want to be Nole”) and published without authorization from Novak Djokovic (or “Đoković”, in the Serbian transliteration). The tennis star’s nickname “Nole” and drawings of him figure prominently on the covers of the book, and one poem in the book allegedly encourages children to bet on Djokovic. Djokovic threatened with legal actions, although it is unknown whether any action actually ensued.
In August 2012, the spouse of the late writer Danilo Kiš protested against a move by an association of Serbian writers (P-70) who used Kiš’s name and quotes from his book in the call for submission of literary works in an open competition for a literary prize awarded by the association. (It should be noted that Kiš’s spouse, Mirjana Miočinović, did not threaten with legal action, in contrast to Djokovic).
What is common to these two examples is that they both involve “right of publicity,” or “right of personality,” issues. The post will employ the abbreviation “RoP”, which stands both for “right of publicity” and “right of personality” – the latter in the aspect concerning the right to control the use of one’s image, name, and any other attribute which makes the person identifiable in the eyes of the public.
Those versed in the issue know that the concepts of the right of publicity and the right of personality are rarely, if ever, used interchangeably. The right of publicity is usually described as a property right which protects against the unauthorized use of the indicia of identity for purposes of trade, whereas the right of personality is concerned with dignitary and privacy interests which may be adversely affected by both commercial and non-commercial uses (of a person’s identity) without authorization.
Yet, when the two concepts are applied to factual patterns such as those concerning Djokovic and Kiš, the line between them turns out to be less than sharp. The right of publicity, which has found its principle locus for implementation in the United States, has been interpreted by the courts of some states as protecting against the use of a person’s personal attributes “for the defendant’s own purposes or benefit, commercially or otherwise” (examples include California and Colorado). At the same time, in European countries which recognize the “general right of personality” (Germany) or the “personality rights” (France), the case law has developed to embrace protection against both non-commercial and commercial uses.
What is a RoP and why is it recognized?
The RoP protects a range of personal attributes, although by far the most frequent cases involve the use of an image (“likeness”) or name of a famous person. In the countries with a particularly rich RoP jurisprudence – the United States, Germany, Italy, and France – image comprises a range of visual expressions that make a person recognizable: photos, statues, caricatures, illustrations falling between representational art and cartoon, look-alikes, dolls, virtual players in a computer games, etc. Name, the second most frequently used feature, also includes pseudonym and nickname.
Other attributes, unauthorized use of which has given rise to court cases in the US, Germany, Italy, and France, include: voice and sound-alikes; signature phrases; signature songs, and, identifying objects such as a cap and scarf (in a well-known Italian case with the musician Lucio Dalla as the plaintiff), a distinctive race car of a driver, or the number of a soccer-player’s sport-shirt.
There is a number of reasons why the distinctive identifying features are protected from unauthorized uses, two of which are especially important. First off, the unauthorized use of one’s personal attributes may injure the dignity and reputation of the person, and cause embarrassment and outrage, especially when the use makes it appear as if the person commercializes his/her image or supports values which s/he in fact opposes. If Danilo Kiš were alive, he might find his reputation hurt by his name being associated with the writers accused by some (including Kiš’s spouse) of ethnic nationalism. In the version of the RoP which emphasizes the value of personal autonomy, it is sufficient – for the RoP to prevail over an unauthorized use – that the infringing association is unacceptable to the person (or, arguably, his surviving spouse), even if the majority of people find such an association acceptable, as in contemporary Serbia they arguably would when it comes to an association of writers perceived as nationalists. Similarly, if the book about Novak Djokovic is likely to mislead the public into believing that Djokovic supported a child betting on him, it may be detrimental to his reputation.
Apart from these dignitary interests, the RoP also protects interests in the commercial exploitation of one’s notoriety, which is impaired when a third person, without authorization, uses a personal attribute of a well-known person. Such use forecloses an opportunity to license a name, image, or voice, to others, or dilutes the commercial value of the identity. These considerations could be particularly relevant in the case of the poetry book using Djokovic’s image and name.
But is there a RoP in Serbia?
The answer to that question is not clear. The concept of a right of publicity, or a right of personality which offers comprehensive protection from the unauthorized use of one’s identity, “commercial or otherwise”, is not explicitly recognized in any statute or in jurisprudence. There are, however, bits in several pieces of legislation which creative judges could build upon in order to develop a consistent and wide-ranging protection of the RoP. Such a development would, in fact, be a repeat of what happened in the US, France, Italy, and Germany, where the courts, in the absence of clear statutory guidelines, created a doctrine.
To a Serbian lawyer, such approach is not surprising when the US is concerned, but the examples of Germany, France, and Italy probably appear astounding. The prevailing understanding in Serbia is that civil law systems heavily rely on statutes and leave little room to a judges’ audacity. Yet the fact remains that judges in Germany, France, and Italy have gone far beyond the express statutory language to create solid protection for the RoP. The statutes in the three countries have provided for the protection of an “image”, which the courts in Italy have expanded to encompass person’s voice and any other attribute which makes the person identifiable in the eyes of the public. The German Civil Code, in addition, provides for a limited protection of name; however, the courts have derived from the Constitution a broader protection, as part of the general right of personality. (A provision in the Constitution on the inviolability of human dignity provided key ammunition to the Federal (Supreme) Court in its progression toward the finding of the general right of personality.) In France, courts have created the right to one’s image, name, and voice mainly through application of art. 1382 of the Civil Code, which provides, in very general terms, that “any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”
Serbia does have a provision in the Constitution (Art. 23) which affirms in strong terms the value of human dignity, and even explicitly says that “everyone” – not just state institutions – is duty-bound to respect it. The Law on Obligations contains a provision (art. 154(1)) similar to the French Civil Code’s art. 1382. Art. 157 of the Law on Obligations entitles a person to seek injunction “of any activity which infringes upon the integrity of human person, … or other rights of personality”, and art. 200 provides for compensation for the infringement. The Advertising Act prohibits unauthorized use of reputation of another person in an advertisement (art. 33), as well as inclusion in an advertisement of a name, likeness, voice, or a writing, of a person without his or her authorization (art. 44). The provisions of the Advertising Act are not restricted to commercial activities and commercial subjects, so the two provisions have potentially sweeping reach. But, like the cited provisions from the Law on Obligations, they have not been tested in a typical RoP-type of situation, commercial or non-commercial, which involves unauthorized use of a famous person’s distinctive attributes. There is room for the Serbian courts to resort to bold interpretation of the provisions from the Law on Obligations and the Advertising Act, imbued by the imperative of protecting human dignity, as laid out in the Constitution.
Protection under the trademark law in Serbia – just like elsewhere – is an imperfect tool for protection from the commercial (or non-commercial) use of one’s identity. Most celebrities do not register their name, voice, or visual traits as a trademark. Novak Djokovic has registered his name and nickname as a trademark for a range of goods and services (see the first part of this post), but trademark infringement requires a likelihood of consumer confusion as to whether the plaintiff produced, sponsored, or approved of the goods or services in relation to which another person has used his/her attributes. Protection under the RoP, in contrast, does not depend on the likelihood of confusion. As for a plaintiff to have a trademark dilution cause of action, the trademark must have a reputation in relation to the specific category of goods and services. Under the RoP, such reputation need not exist – the reputation of the person suffices.
Is the RoP descendible?
The example of the writers’ association using Kiš’s name raises the question whether RoP can survive the death of the person. Even the jurisdictions which have amassed case-law on the RoP would struggle to find an answer to that question.
Although the opinion is divided, most courts in the US, Germany, France, and Italy have moved toward recognizing limited descendibility, in the sense that heirs may prevent the unauthorized commercial use of the deceased’s personal attributes. When it concerns moral harm, this right may be limited to a situation in which “the selection and display of the image is likely to impair the perception that the public may have of the deceased” (Paris Court of Appeals, judgment in the Coluche case (1996)).
As the Serbian law does not specifically regulate the RoP as such, one can only look for suitable analogies with existing provisions in related areas of law. The Serbian Public Information Act provides for the right of the next-of-kin to authorize, or withhold authorization for, the use of personal information, written records, and the voice or image of the deceased (art. 44 of the Law). While this provision has numerous exceptions (listed in art. 45), it nevertheless affirms the principle that the heirs should decide upon the public use of the deceased’s identity. The Advertising Act contains a similar provision (art. 44) concerning the use of a name, likeness, voice, or the writing, of a deceased person in an advertisement. A court not reluctant to cope with the absence of an express statutory provision could fill the gap by relying on the principles from the aforementioned statutes.
Defenses to the claims of infringement
Among various potential defenses in RoP cases, those based on the freedom of expression appear especially relevant in situations such as those concerning Djokovic and Kiš. In jurisdictions which recognize one version or another of the RoP, commercial speech enjoys limited protection, whereas artistic expression and political speech, on the opposite end, benefit from strong protection. News worthiness also confers significant protection to speech.
However, black and white cases are rare. In the example of Djokovic, the use of the celebrity is commercial, because the book was offered to be sold to primary school children; however, the book has a non-commercial aspect as well, as a book of poetry. Whether a piece of work genuinely amounts to artistic expression or represents a poorly disguised effort to commercially exploit one’s popularity, is a matter of factual inquiry which cannot be undertaken here. Different jurisdictions agree, by and large, that a person’s image or other personal attribute must be used for genuinely artistic, or genuinely informational, purposes. This means that “the identity of the holder of the right bears a reasonable relationship to the message”. If that is not the case, one is confronted with an advertisement in disguise which must give way to the RoP. In addition, the courts in Europe have often judged that artistic expression and informational speech defenses are not available if the use of an image or name is disrespectful of human dignity (France, Germany), i.e. prejudicial to the “honor, reputation, or propriety” (decoro) of the person (Italy). Finally, with respect to artistic works, some courts in the U.S. engage in measuring literary and expressive value in order to determine legal protection. (This approach, however, risks turning judges into aesthetic appraisers, something they are not qualified for.)
The application of the above considerations is particularly challenging in the Kiš example. In that case, based on the available information, the writers’ association P-70 is not making any pecuniary gain from the use of Kiš’s name and words. On the other hand, the calls by the association P70 for submission of literary works do not indisputably belong to any specific category of strongly protected speech. The calls – one from May 2011, and the other from August 2012 – do not seem to amount to artistic expression or contribute to a debate on any specific political or social issue. The calls can be seen as “newsworthy” (informational), in the sense of informing the public about the literary prize. However, it is not clear that the invocation of Kiš reasonably relates to the remaining content of the call. It may well be that Kiš is used simply to draw attention to the prize. If so, the announcements would be “advertisements in disguise”. Dignitary and reputational concerns may also work against the writers’ association if the unauthorized use of Kiš’s name might transform the public perception of the writer through the association with ideological opponents. In this sense, it should not matter that in reality many people might view Kiš more favorably if they could perceive him as a nationalist. In the matter of dignity, the relevant point of view is that of the person concerned (and arguably his surviving successors), and not of society. In 1979, in fact, Kiš left Serbia for France, according to his wife because of his opposition to Serbian nationalism.
