On June 22, 2022, the Court of Rome issued decision no. 10041/2022 which clarifies the difference between creative and simple photographs, confirming that even the unauthorized use of simple photographs represents an illicit and implies the obligation to compensate the damage.
The Case
A photographic agency sued a newspaper stating that the latter illegally used 51 photographs shot by the agency, publishing them with 127 articles published by the newspaper. Since the list price applied by the agency would be of 150,00€ for each photo, the agency asked a compensation of 23.214€, resulting from the list price multiplied by each unauthorized use.
The respondent defended itself by claiming to have found the photographs on Google, where they were in low resolution and without any indication relating to ownership or origin. It criticized also the artistic feature of the photographs and the quantifications of the compensation made by the agency.
Motivations
Before issuing the decision, the Court retrace the Italian discipline concerning copyright protection on photographic works, which distinguishes three hypotheses:
- creative photographs, benefitting from the protection provided by art. 12 and following, 20 and following and 171 and following of the Copyright Law, for the 70 years following the death of the author;
- simple photographs – that is “images of persons or aspects, elements or facts of natural or social life” – lacking creative feature even if characterized by personal activity of the photographer. These photographs benefit from a more limited protection, provided by art. 87 and following of the Copyright Law, and for 20 years following the production of the photograph;
- photographs of “writings, documents, business papers, tangible goods, technical designs and similar products” which, on the other hand, are without protection.
In order to distinguish between creative and simple photographs, the Court recalls that “it needs to be verified whether there is a creative act, which is the expression of a predominant intellectual activity with respect to the technical material, as the reproduction mode of the photograph data conveys a further and different message with respect to the objective vision of it, giving a subjective interpretation which allows to identify the work among similar ones”. Therefore, the photograph is creative when it is able to evoke suggestions or to convey the photographer’s personal input, without limiting to reproduce and document determined real situations.
In the case under exam, the Court considered the 51 photographs shot by the agency simple photographs and not creative ones. To summarize, the fact the author of the shot was a professional photographer was not considered sufficient to qualify the photograph as creative, as it is necessary to meet the requirements of originality and creativity.
The decision of the Court
The Court considered that the use by the newspaper of the simple photographs was in any case illicit and that the agency had the right to compensate the damage requested. As a matter of fact, to no avail was to argue that the photographs were found on the Web. On the contrary, precisely because they were found on the net, the Court said that those who run a newspaper should be aware of the existence of copyright regulations and adopt all necessary precautions to avoid infringements.
With respect to the quantification of the compensation, the court agreed with the criteria applied by the agency based on the list price usually applied, recalling that the compensation comprises also the prejudice suffered for the uncontrolled diffusion on the web of photographs and for the consequent dilution of their economic value.
Ilaria Feriti