Sources of law
1 Is the right of publicity recognised?
The right of publicity is recognised in Greece, as per the provisions of articles 57, 58 and 59 of the Greek Civil Code. It may also be protected from a constitutional aspect as well as other legal angles, in terms of the regulation of the financial exploitation of personality deriving rights.
2 What are the principal legal sources for the right of publicity?
National legislation and case law primarily regulate the issue. Greece is bound by all relevant EU law provisions, including the European Court of Human Rights, and is a member of all relevant international treaties.
3 How is the right enforced? Which courts have jurisdiction?
The right is enforced by civil courts, with local jurisdiction being determined by the place of residence of the respondent to the lawsuit.
4 Is the right recognised per se, or by reference to other laws?
The right is recognised by reference to the Greek Civil Code and the Greek Constitution.
There are also relative rights that derive from:
• the Copyright Law No. 2121/1993;
• the Trademark Law No. 2293/1994; and
• the Data Protection Law Nos. 2472/1997, 3471/2006 and 3783/2009.
Existence of right
5 Who has or is entitled to the right of publicity?
The right of publicity is a personality right that belongs to the individual, who is therefore the primary person entitled to the right.
If the right is commercialised to an entity, such entity is also entitled by law to derive commercial benefit from the particular commercialised publicity right.
6 Do individuals need to commercialise their identity to have a protectable right of publicity?
Not necessarily. Legal scholars agree that in reality, since publicity and fame can nowadays be easily obtained due to widespread media resources (eg, the internet, satellite TV, etc), the potential commercialisation of personality and identity rights is sufficient. Various case law (168/1979 and 3051/2003) has shown that even using photographs of inhabitants of rural Greece on postcards and in tourist guides without their consent constitutes an infringement of their right of publicity.
7 Can a foreign citizen have a protectable right of publicity?
There is no distinction between foreign and domestic citizens in terms of whether their rights are or can potentially be commercialised in Greece. Further, citizens of any EU member state enjoy the same legal protection of rights applicable to Greek citizens.
8 What is protected under the right of publicity?
The image, name and alias, voice and all characteristics (irrespective of how minute) that pinpoint the identity of a person are all protected under the right of publicity.
Past case law (16785/1980) has indicated that even the adaptation of well-known lyrics of a famous Greek composer (M Theodorakis) constitutes an infringement of publicity rights.
As such, the scope of protection is broad and subject to adaptation based on current trends and developments.
9 Is registration required for protection of the right? If so, what is the procedure and what are the fees for registration?
There is no registration requirement.
Ownership of right
10 Can the right be transferred? In what circumstances?
Yes; the right can be transferred during the person’s lifetime or even post mortem, provided there is commercial value deriving from it.
11 Can the right be licensed? In what circumstances?
The right can be licensed provided the licence agreement is in writing and conforms to the general principles of contract law.
12 If the right is sold or licensed, who may sue for infringement?
Absent an express clause in the licence agreement, both the licensor and the licensee may sue for infringement provided that they can establish a link of causation for damage purposes.
13 How long does protection of the right last?
The protection of the right lasts for the duration of the person’s lifetime and while there is a viable commercialisation of the right, unless the particular object of the right is also protected by trademark. In such case, the right lasts for as long as the trademark is renewed or the right is copyright-protected as per the applicable provisions.
14 Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?
The right can be protected post mortem, but no express provisions exist defining the duration of post mortem protection. However, according to the principles of article 932 of the Greek Civil Code, the right can be protected post mortem provided that the right has been exercised while the person was alive and that the publicity rights of the deceased person’s estate do not conflict with the reasonable right of the public to receive information.
15 If post mortem rights are recognised, who inherits the rights upon the individual’s death? How is this determined?
The right is inherited by the right owner’s heirs or successors.
If the person dies intestate, his or her successors inherit the rights, as defined by the general provisions of Greek law for next of kin applicable in the circumstances.
16 Can the right be lost through the action or inaction of its owner?
It is agreed among legal scholars that if the right of publicity has become ‘commonplace’, it should not enjoy protection as a matter of principle; for example, the image of a famous journalist or actress normally featured in a newspaper does not enjoy special protection, as it is commonplace to use such images for famous individuals and celebrities.
In all events, the right of publicity should be actively protected by its owner in order for it to remain valid and in force.
17 What steps can right owners take to ensure their right is fully protected?
Since the right of publicity is an express right inuring to the benefit of right owners, it must be expressly included in any agreements entered into for commercial purposes and various promotions, not just as a copyright or trademark but as an explicit right.
Right owners can proactively safeguard and act against misuse of their publicity rights by third parties through both judicial and extra-judicial means of protection as may be needed.
Infringement
18 What constitutes infringement of the right?
The actual or potential financial exploitation of rights relating to a person’s personality or identity without the person’s consent constitutes infringement of the right.
19 Is an intent to violate the right necessary for a finding of infringement?
If there is financial exploitation, actual or potential intent is a prerequisite.
In a recent Court of Appeals case (219/2007) the finding of infringement related to the negligent misinformation of a credit agency about the credibility of an individual. Though the act was not made public for direct financial exploitation, it was still found to infringe the personality rights of said individual who was awarded damages for moral insult.
20 Does secondary liability exist for the right? What actions incur such liability?
Secondary liability (in the form of vicarious liability) exists on a principal–agent level for all sorts of legal relationships in Greek law.
As long as the agent’s actions fall within the scope of its legal relationship with the agent, the principal remains liable. In all other cases, the agent is separately liable to the infringed party.
21 What defences exist to an infringement claim?
Valid defences may be invoked based on the Greek Constitution, in particular the principles of:
• freedom of expression (article 14);
• freedom of press (article 15); and
• freedom of art (article 16).
Remedies
22 What remedies are available to an owner of the right of publicity against an infringer? Are monetary damages available?
As publicity rights are recognised as property rights in Greece, monetary damages can be obtained by invoking the principles of unjust enrichment, restitution of damage and loss of profit. Injunctive relief (temporary or permanent) may also be granted. Publication in the press to effectively rectify the situation can also be ordered.
23 Is there a time limit for seeking remedies?
For main infringement action proceedings of particular legal principles, time limits for seeking remedies regarding pure right of publicity issues can be derived from relevant case law (940/1995 and 3346/1996).
In general, the provisions applicable to petition for injunction proceedings for establishing urgency as a prerequisite for granting relief apply by analogy.
24 Are attorneys’ fees and costs available? In what circumstances?
Attorneys’ fees are not recoverable by court awards.
Court costs are recoverable, and are awarded in favour of the winning party.
25 Are punitive damages available? If so, under what conditions?
No punitive damages are available in Greece.
26 What significant judgments have recently been awarded for infringement of the right?
One interesting decision involved a dispute between a well-known journalist in Greece and the mother of the then Minister of Foreign Affairs (currently the Prime Minister of Greece).
The decision involved the issue of the right of publicity due to the journalist’s unauthorised publication of private e-mails between the individual in question and her son, as well as other recipients.
The court of appeals held that the right of publicity of the individual was infringed despite the journalist’s defence that, as a relative of a high-publicity politician, freedom of press and freedom of expression principles outweighed the right of publicity of the individual.
Litigation
27 In what forum are right of publicity infringement proceedings held?
As with normal lawsuits, the only currently available forum is the local court where the defendant has its legal seat or place of residence, as with normal lawsuits. Alternative dispute resolution is not available for this type of right, although it would be helpful.
28 Are disputed issues decided by a judge or a jury?
Disputed issues are decided by judges in civil proceedings.
The number of judges (one or three) involved in such decision depends on the instance and division.
29 To what extent are courts willing to consider, or bound by, the opinions of other national or foreign courts that have handed down decisions in similar cases?
Greek case law has increasingly shown signs of being positively predisposed towards examining the relevance of other court decisions (whether from foreign jurisdictions or from other local courts) and on occasion being influenced by them.
30 Is preliminary relief available? If so, what preliminary measures are available and under what conditions?
Yes, preliminary relief is available. In cases of extreme urgency and irreparable harm a temporary restraining order can be obtained on the day of request. If granted, the order remains in force until the petition for injunction proceeding is decided. If the petition is granted, it is effective provided that a main infringement action is initiated within 30 days following the issuance of the decision.
31 What avenues of appeal are available in main proceedings or preliminary injunction proceedings? Under what conditions?
The court of appeals with local jurisdiction is the appropriate forum for appealing main-proceeding decisions. Petition for injunction proceedings are not subject to appeal on the merits. They are subject to appeal only on rare occasions when the immediate enforceability of the petition for injunction decision has been suspended because the party seeking the suspension has established that the disproportionate burden of having to immediately cease the activities outweighs the rights of the individual seeking protection.
32 What is the average cost and time frame for a first-instance decision, for a preliminary injunction, and for appeal proceedings?
Time frames and costs are not subject to a general estimate and vary greatly depending on the circumstances of the case involved.