Communicated on 19 October 2017

THIRD SECTION

Application no. 77427/14 Stanislav Vladimirovich MIKHAYLOV against Russia lodged on 5 December 2014

SUBJECT MATTER OF THE CASE

The applicant, a famous singer, sued a private company in relation to the unauthorised use of his image by way of recourse to make-up techniques for creating a negative character named Mikhail Stasov played by an actor in a comedy film entitled Dublyor (Understudy). The courts watched a commercial trailer but refused to watch the film. While acknowledging that there had been close resemblance to the applicant and that photographs of the applicant and videos showing him had been used in the film, the courts dismissed as inapplicable his reference to Article 152.1 of the Civil Code (requiring consent for reproducing one ’ s image ( изображение ), inter alia, in a photograph, a video or a work of art) in relation to the alleged visual representation of the applicant ’ s image by the l ead character. They referred to Article 1274 of the Civil Code authorising the use of copyright “material” ( произведение ) or other intellectual-property “material” without its author ’ s consent for the purpose of a parody or caricature. The courts considered that the film had used the applicant ’ s “stage persona” ( сценический образ ) and had not reproduced his “original” personal image; the applicant had not proven that those were identical; this had been done in a parody. Lastly, it was specified that if the parody tarnished he dignity, personal or business reputation, he could bring an action under Article 152 of the Civil Code.

In concomitant proceedings he unsuccessfully sued in relation to the television broadcast of the film and the actor ’ s interview given as Mikhail Stasov . In the last case the courts, however, acknowledged the unlawful use of one photograph.

QUESTIONS tO THE PARTIES

1.1. Did the respondent State incur and comply in the circumstances of the case with a positive obligation under Article 8 of the Convention? In particular:

- What was a “stage persona” under Russian law at the material time? How was it different from the notion of one ’ s “image” within the meaning of Article 152.1 of the Civil Code? Did the latter concern a non-identical rendering, for instance in drawings or other works of art ( произведения изобразительного искусства )? Did a “stage persona” amount to “material” within the meaning of Article 1274 of the Civil Code?

- If an action under Article 152.1 of the Civil Code was not suitable, did the applicant have another legal procedure, which was adequate for ensuring respect for his “private life” in terms of Article 8 § 1 of the Convention and protection of the “rights of others” in terms of Article 10 § 2 of the Convention? For instance, was a procedure under Article 152 of the Civil Code available to the applicant where the impugned artistic expression did not amount to “information” ( сведения ) within the meaning of this provision or to statements of fact?

1.2. Did the domestic courts adequately determine the relevant context of the case, including the competing interests falling within the scope of Articles 8 and 10 of the Convention (see Grebneva and Alisimchik v. Russia , no. 8918/05, § 33, 22 November 2016, with further references, and Schüssel v. Austria ( dec. ), no. 42409/98, 21 February 2002)? Did the domestic courts apply the relevant standards relating to Articles 8 and 10 of the Convention and adduce “relevant and sufficient” reasons and base their conclusions on an acceptable assessment of the facts (see Terentyev v. Russia , no. 25147/09, §§ 20-24, 26 January 2017 as regards the approach), in particular having regard to the requirements imposed on the courts by the Plenary Supreme Court of Russia in Ruling No. 21 of 27 June 2013 (in particular, paragraphs 5 and 8)?

1.3. Was the applicant afforded sufficient procedural safeguards in the relevant proceedings (see, in the context of Article 8 of the Convention, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I; P.G. and J.H. v. the United Kingdom , no. 44787/98, § 46, ECHR 2001-IX; Al- Nashif v. Bulgaria , no. 50963/99, § 123, 20 June 2002; X v. Finland , no. 34806/04, §§ 220-222, ECHR 2012 (extracts); and Ustinova v. Russia , no. 7994/14, § 44, 8 November 2016)? Reference is made, inter alia , to the absence from the file of expert and specialist reports adduced by the applicant and accepted by the first-instance court in the first case (judgment of 26 November 2013 as upheld on 6 June 2014).

2. Did the applicant have a fair hearing as required by Article 6 § 1 of the Convention? In particular, did the courts in the first case conduct a proper examination of the evidence adduced by him, without prejudice to their assessment of whether it was relevant (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004 ‑ I), inter alia , as regards the parody exception?