With the sentence of March 22nd 2022, the Court of Naples, having ascertained the illicit use of the rights connected to a photo by a company, condemned it to compensate the damages suffered by the holder of the rights on the photo, quantifying them using the SIAE tariffs.
The case involved a German company that owned in a derivative way the economic rights – which had been purchased from the photographer – on a photograph representing an aerial view of the Vesuvius. The photo was also published on the website of the photographer who took it. It bore his credentials and was purchasable, with license, directly from the website of the photographer.
However ,unbeknownst to the photographer and the German company, holder of the mentioned rights, an Italian company published the photo on its website for commercial purposes.
The Judge of Naples detected an offense in the conduct of the Italian company, reiterating that even a simple photo lacking of creative nature, like the one of the aerial view of the Vesuvius, deserves protection.
In particular, the Court of Naples introduced criteria to identify who is the holder of the right to reproduce the simple photo published on the web and adheres to the jurisprudential choices aimed at dispelling the interpretative doubts on the quantification of the damage.
In brief the sentence states that:
- It is the Judge that has to ascertain, each time, if the photo is a photographic work, with a minimum gradient of creativity, and if the photographer who took it is the author and the owner of all moral and economic rights provided by the referring law (precisely the law on copyright no. 633 of 22 April 1941);
- In absence of the minimum gradient of creativity, the photo is qualified as “simple photo” and the owner enjoys only the rights of reproduction, dissemination and sale pursuant to art. 88 of the law no. 633 of April 22nd
- The photographer can assign his rights to a third party which becomes their owner, in derivative way;
- Both the photographer and the owner in derivative way of the reproduction, diffusion and sale rights on the photo must be protected from any form of violation;
- If the photograph is published on the web, the photographer must indicate their credentials on the website to be known as its owner and be protected absolving the requirement at art. 90 of the law no. 633 of April 22nd 1941.
All these circumstances were present in the case under exam.
Moreover, the sentence reconfirmed the orientation in jurisprudence that the SIAE tables of Compendium are a reference parameter, in an equative way, for the quantification of the damage suffered by the photographer and the German company due to the non-authorized use of the photo by a third subject (see also Court of Rome, business special section, 15490 of October 1st 2021).
Maria Luisa Milanesi