Courts Confirm: Using Salvador Dali's Name on Clothing Breaches Artists Publicity Right

I came across a really interesting case, via Lexology on Salvador Dali and the right to publicity here. The case, Fundacio Gala-Salvador Dali v VS Marketing (Israel 2005) Ltd (CC (Central Distr) 3247-01-08, August 28 2016 concerned a dispute between - The Gala Foundation, a Spanish foundation for the protection of the works of the late artist Salvador Dali that filed a lawsuit against two Israeli companies. The main breaches extended to the use of the words “by Salvador Dali” on hangers and tags and also menswear clothing, by which the foundation argued that the companies and their franchisees had made excessive use of the late artist Salvador Dali’s name for marketing, advertising and commercial promotion purposes, and had thus improperly capitalised on Dali’s fame and goodwill - claiming copyright and trademark infringement, passing off, unjust enrichment and a tort under the Consumer Protection Law.

DAUM: Montre Molle Coat Hanger watch 1971

Regarding the IP infringement - "The Israeli court held that trademark infringement had not been established, as the plaintiffs had failed to adduce proper registration certificates. It was noted that, even assuming that there were registrations in force, the plaintiffs’ marks that included the name Salvador Dali as the artist’s signature in stylised form (in Class 3 for perfumes, Class 14 for precious metals including jewellery, and Class 33 for alcoholic beverages) were not in respect of goods “of the same description” as the defendants’ goods (clothing) and, thus, did not fall within the scope of ‘registered trademark infringement’ under Section 11(9) of the Trademarks Ordinance (New Version) 5732-1972. The court also rejected the plaintiffs’ claim that their mark was a “well-known trademark" and the claim of passing off."

Thus, the case is interesting because it then hinged on the scope of protection afforded by the right of publicity as an economic right - and the right to control the commercial exploitation of one’s image, and secondly, whether the right of publicity survives a celebrity’s death.

In this case, the courts reviewed the duration of protection of various IP rights under Israeli law, along with comparatively the duration of the right of publicity in various US jurisdictions - concluding that the right of publicity remains after the death of the celebrity - surviving for at least 25 years after the celebrity’s death. 

Justice Aharon, came to the descion that because the complaint was within this 25 year timeframe, that through the making for sale of clothing and accessories bearing the name of Salvador Dali - the artist right of publicity was in-fact infringed, confirming that as a property right, the right of publicity can be transferred or passed on by succession and is therefore actionable by the celebrity’s estate.

The Israeli courts have taken a different approach to the Spanish courts on this matter. In a recent case last year, (June 2016) - the Spanish Supreme court dismissed an appeal from the Gala-Salvador Dalí Foundation in its lawsuit against a Barcelona exhibition production company, finding that the foundation does not have the legal standing to protect the artist’s image - in particular the court pointed out that: "since the lawsuit was filed well after Dalí’s death in January 1989...such circumstance implies that his fundamental personality rights—specifically the right to his own image—became extinct with his passing, as death marks the end of the legal personality of natural persons.” 

More on both these cases can be found here and here