The Supreme Court Rules on the Post-mortem Protection of Salvador Dalí’s Image Rights
(picture of Philippe Halsman “Dalí Atomicus”)
The present post briefly comments on the Spanish Supreme Court Judgement 414/2016 of 20 June 2016 (ECLI:ES:TS:2016:2781) which contains some interesting interpretative criteria regarding the enforcement of image rights.
The case began on November 18th 2008, day in which the Gala-Salvador Dalí foundation, the Dutch company Demart Pro Arte, B.V (holder of several Spanish and EU trademarks related to Dalí) and VEGAP (non-profit organization that represents certain aspects of IP rights concerning Dalí’s works) brought a lawsuit against Faber Gotic and its administrator.
The cause of action was the defendant’s organization and commercial exploitation of a permanent exhibition devoted to Salvador Dalí, that included the display against payment of sculptures belonging to the “Clot Collection”, the sale of Dalí’s merchandising and the advertising of such collection and sale in websites and leaflets (among others).
Such activities hadn’t been authorized by the plaintiffs, which lead to the filing of infringement actions related to trademarks, copyright, protecting image rights and unfair competition, requesting the termination of the unlawful behaviours.
Case’s background: The Gala-Salvador Dalí Foundation and its role in the protection of the painter’s rights.
On September 20th 1982, Salvador Dalí granted a will appointing the Spanish State as universal inheritor of his work. On December 23th 1983, he set up the Gala-Salvador Dalí foundation whose purpose is to protect and defend his artistic creations. The Spanish Government and the foundation entered into a contract granting exclusive exploitation rights to the foundation. However, the contract did not contain any explicit reference to the painter’s image rights.
Such oversight was amended by the State through a royal decree-law, extending the competences granted to the Ministry of Culture and, as in the case of exploitation rights, authorizing the Ministry to stipulate the exclusive assignment of the image rights to the Gala-Salvador Dalí Foundation.
The matter at issue at the different stages of the proceeding was, as we shall see, whether the Gala-Salvador Dalí Foundation was entitled, on the basis of the competences granted, to enforce the painter’s moral rights, alleging in particular an infringement of his fundamental image’s rights, or such entitlement was instead limited to patrimonial rights.
In the first instance, a Barcelona Commercial Court ruling partially held the claims of the Gala-Salvador Dalí foundation, and recognized the existence of acts involving unfair competition by means of confusion and misappropriation of another’s reputation, as well as an infringement of the Foundation trademark’s rights and copyright.
Nevertheless, the claim concerning the image rights was dismissed by the Court, considering that the protection of such rights was already implied in the copyright and unfair competition acts allegations.
This last part of the ruling was appealed by the plaintiffs. The Provincial Court dismissed the appeal, although this time the refusal was based on different grounds.
According to the Provincial Court’s approach, the fact that the Spanish State as Dalí’s universal inheritor had assigned its rights to the Gala-Salvador Dalí Foundation, could not be used to substantiate the Foundation’s entitlement regarding the protection of the painter’s image rights. In fact, according to art. 4 of Organic Law 1/1982 on the protection of honor, privacy and image, (in Spanish) (LO 1/1982) , the exercise of such actions corresponds to:
- The person designated for such purpose in the will
- In the absence of such designation, the spouse, ascendants, descendants and siblings of the person concerned, living at the time of his death
- Ultimately, the Public Prosecutor can act ex-officio or at request of a party, provided that no more than 80 years have elapsed since the date of the death.
In this particular case, the Court considered that since Salvador Dalí didn’t include any specific designation in his will, the entitlement concerning the protection of the author’s personal rights corresponded to the Public Prosecutor rather than to the Foundation.
The Supreme Court ruling:
Finally, the Supreme Court, coinciding with the previous findings, denied the Foundation entitlement concerning Salvador Dalí personal rights, on the following basis:
- Firstly, as appreciated by the Provincial Court, the Foundation lacks any entitlement regarding the actions set in LO 1/1982, and in particular, the one related to the protection of image rights, due to the absence of any specific designation in the painter’s will.
- Secondly, the Supreme Court considers that the real purpose of the Foundation was not the protection of Dalí’s memory, but rather the protection of strictly patrimonial interests related to the artist’s image. As a matter of fact, according to the Court, the lawsuit didn’t raise the issue of whether the defendant’s conduits were, in fact, prejudicial to the artist memory.
According to such reasoning, the Supreme Court supports its ruling on the distinction between the fundamental image rights, foreseen in article 18.1 of the Spanish Constitution and developed in LO 1/1982, and the protection of the economic interests associated with such rights’ exploitation.