Salvador Dali & The Persistence of Personality Rights
Authored by Sara D' Sousa
Reviewed by Subhash Bhutoria
Salvador Dali once said that he would never really die. As grandiose as this statement is, it rings true: his surreal artwork keeps his memory alive, and the litigation surrounding his estate, his intellectual property, and his rights post-mortem infuse IP and contract jurisprudence with a sense of wonder and slight confusion (much alike his paintings). The artist has always been a magnet for attention, both through his art and his personality, and his presence in popular media contributes to that. Money Heist, a Netflix show using Dali masks as a costume, recently brought Dali back into the limelight. This article discusses the personality rights accorded to Dali in Spain and other jurisdictions through the litigation surrounding Salvador Dali’s estate, further juxtaposing this with the usage of Dali Masks in Money Heist and its consequent potential infringement of image rights.
Salvador Dali was a polarising figure during his lifetime, and continues to be so following his death. He has long been revered as an icon of the Surrealist art movement thanks to his immense talent, creativity, and ground-breaking creations. ‘The Persistence of Memory’, one of his early pieces, has enthralled viewers for years – so much so that the eerie melting clocks have come to be known as a quintessentially Dali creation. Even so, the Spaniard artist lived a larger-than-life existence and was known for more than his body of artwork alone. He was intensely charismatic, and fascinated both the public and the art world with his eccentric behaviour, controversial opinions, and uniquely cartoonish moustache. Dali also had a wonderfully ironic sense of humour – evident through the titles of some of his paintings, which intended to confuse and confound viewers. He often wore outrageous clothing pieces that mimicked, and even mocked, his own art. It is certainly not up for debate: Dali declared himself a genius, and his avant-garde creations allow no space for doubt.
Not only did Dali leave behind a rich artistic legacy, but also a rather complicated legal one. He had bequeathed all of his works to the Spanish Government, which upon his demise in 1989, assigned all rights to the Gala-Salvador Dali Foundation. The Dali Foundation is a private cultural institution established in 1983 by Dali himself to promote and protect his oeuvre, rights, image, and more - as can be seen from the organization’s bylaws. Ever since, the Foundation has led several litigations in various jurisdictions with the endeavor to protect the intellectual property rights and likeness of Salvador and Gala Dali. The litigations surrounding Dali’s personality rights are the focus of attention in this article.
Gala-Salvador Dalí Foundation, Spain
Referred to as the right to one’s own image, personality rights of deceased persons can be rather contentious and complicated thanks to differential treatment of the subject in various jurisdictions. Under Spanish law, the Constitution recognizes the protection of the memory of deceased person as an organic right alone. The commercial rights, however, in one’s personality, are protected through the IP regime. The LO 1/1982 protects the honor and dignity of the deceased personality, and commercial loss has no bearing on this provision of law.
This distinguishing factor found itself at the heart of the case before the Spanish Supreme Court in Fundación Gala-Salvador Dalí v. Faber Gòtic & Anr. The claim was twofold: first, that the defendant had infringed the trademark and other IP rights by using Dali’s name and image for advertising purposes; second, that in doing so, Dali’s personality rights had been violated. The Court upheld the Dali Foundation’s claim for trademark and IP rights infringement. However, in dismissing the second claim, the Court went a step further to observe that the Dali Foundation did not have (and never had) the legal standing to exercise protection over Dali’s personality rights. The Foundation was authorized to only protect Dali’s IP rights, and not his fundamental personality rights (as under LO 1/1982) due to the absence of any specific designation in Dali’s will. It found that the Foundation’s suit stemmed from interests of a strictly financial nature, rather than a desire to preserve the memory of the artist (considering that the right to personality extinguishes upon death in Spain, only the memory of the deceased could be protected).
The approach to personality rights differs across jurisdictions, and one such example is the case before the Israeli Central District Court in 2016 which dealt with misuse of the Dali’s name by an Apparel brand. Interestingly, the Court here took the opposite approach from the Spanish Supreme Court: it chose not to uphold the claim for trademark infringement, instead favouring the publicity rights associated with Dali’s likeness. This is significant because in Israel, publicity rights are considered economic rights and not fundamental rights (as is in Spain). The Court, based on an analysis of the law in various US jurisdictions, observed that the right to publicity survives at least twenty-five years from the date of the person’s death. It further observed that the right to protect Dali’s image had devolved upon the Gala-Dali Foundation.
Dali’s controversial nature is echoed by the various legal disputes in his name around the world. Not long ago, his artworks were also subject to a litigation concerning the beneficiaries of royalties from resale rights. Most recently, however, his image and particularly his moustache, became the face of a global phenomenon when it appeared on the mask worn by characters of the Netflix series, ‘La Casa De Papel’ or ‘Money Heist’. Its viral fame brought with it a host of legal issues, one among them being the Dali Foundation’s concerns regarding the infringement of Dali’s personality rights through the allegedly unauthorized use of his image for the mask.
The usage of Dali’s face for the mask in Money Heist does not appear to be mere caricature. It bears several dialogue references to Dali’s rebellious and unconventional personality, and seemingly attempts to emulate his satiric nature. The show’s producers even admit that the mask is inspired by Dali, therefore, the Dali Foundation certainly has plausible reason to dispute the use of Dali’s likeness as it was done without their prior permission. The producers defend the use by claiming the mask to be caricature, the artform of which is considered as an exception to personality rights under LO 1/1982. However, it would then have to be shown that the mask was designed in such a way as to be a satirical drawing with some intellectual process preceding it and involving part of the drawing to be deformed in order to possibly make people laugh. The socio-political impact of Dali mask is apparent from the fact that various incidences, including one in India, Dali masks were used by robbers to stage Money Heist style robberies. It could be argued, in order to invoke the protection of LO 1/1982 which protects the fundamental aspects of dignity of a deceased personality, that the use of these masks could amount to a degeneration of the artist’s memory.
Much like Dali’s personality, the image or personality right is an unconventional domain of legal rights. In addition to it being a part of the intellectual property rights, personality rights are, in most jurisdictions, a subset of human rights, particularly, the right to life and dignity. In some jurisdictions, such as certain states of the USA, personality rights are construed in a manner akin to property. For any artist, whose personality has a secondary significance, it is expedient to identify the traits, which accounts for her/ his likeness and protect them through legal channels including intellectual property rights and contracts.
About the Author
Sara D’Sousa is a Fourth Year B.A., LL.B. (Hons.) student at NMIMS Kirit P. Mehta School of Law and is an Art Enthusiast. Sara is presently interning with Art Law India.
 Article 18.1 of the Spanish Constitution and the Organic Law 1/1982 (LO 1/1982), protect the fundamental aspects of personality, such as dignity and reputation. LO 1/1982 protects the memory of a deceased person insofar as it is an extension of the deceased’s image or personality while alive. Ordinary legislations (eg. trademarks, copyrights, or contract law) protect the commercial exploitation of image and personality – different from the protection cast under LO 1/1982.  Judgment 414/2016, Fundación Gala-Salvador Dalí v. Faber Gòtic, Sl, & El Real Círculo Artístico De Barcelona, Supreme Court of Spain.  Fundacio Gala-Salvador Dali v VS Marketing (Israel 2005) Ltd (CC (Central Distr) 3247-01-08, August 28 2016)