With ruling no. 5635 of June 3, 2024, the Milan Court addressed the issue of the unauthorized reproduction of photographs taken from the internet and distributed to various news outlets without the indications required by Article 90 of the Copyright Law or the so-called “digital watermark”, the digital mark that identifies the author.
The Court’s decision offers an important opportunity to reflect on the differences between the various types of photographs and the conditions for protecting them. In particular, the law distinguishes between creative photographic works and simple photographs.
The protection of creative and simple photographs
Photographic works that fall within the scope of Article 2, no. 7, of the Copyright Law are considered expressions of creativity and enjoy broad protection, including the moral and patrimonial rights recognized to authors.
On the other hand, simple photographs, described in Articles 87 and following of the Copyright Law, receive limited protection for related rights, provided that specific formal requirements under Article 90 of the Copyright Law are met.
In particular, they must bear the name of the author or the client, the date of the shot, and, in the case of reproductions of works of art, the name of the original author. In the absence of such indications, exclusive rights cannot be opposed to third parties, unless the plaintiff proves the bad faith of the user of the photographs, if the user is aware of the existence of an exclusive right on the photograph but proceeds anyway to its use without any authorization.
The distinction between these two categories is based on the existence or absence of the creative element. As clarified by the jurisprudence, creativity must emerge from an artistic intuition that makes the photograph a unique work. In fact, aspects such as the care of the framing or technical skill, although important, are not sufficient on their own to qualify a photograph as “creative”.
The Case
In the case brought before the Court, the photograph, which was contested for its use depicting several CEOs and bank and company managers, was not considered creative by the court and it did not appear that the plaintiff had indicated on the photograph the elements established by Article 90 mentioned above. In these cases, as also reiterated by the Supreme Court, it is up to the plaintiff to prove that the reproducer was aware of the authorship of the work.
This proof is essential to possibly request a fair compensation for the unauthorized use of the photograph. Therefore, the plaintiff, having failed to prove any of the above, had his claims dismissed by the Court.
Conclusions
The Milan Court’s judgment highlights the importance of strictly complying with the requirements prescribed by the law to ensure adequate protection of photographs, with increasing relevance in the context of the digital age.
The indication of the author’s name, the date of creation of the shot, and, where applicable, the name of the author of the reproduced work, is not a mere formality, but a fundamental element to allow the effective exercise and recognition of exclusive rights.
Elena Bandinelli