The Court of Milan states that photographs found on the web can be used freely if devoid of date and author’s name
With judgment no. 5635 of 3 June 2024, the “Enterprise A” Chamber of the Court of Milan ruled on the subject of copyright on so-called ‘simple’ (non-creative) photographs available and accessible on the internet. In particular, it stated that these photographs, except in cases of bad faith, can be used freely and without authorisation by the people who found them, if they lack the indications prescribed by Article 90 of the Italian Copyright Law (no. 633/1941, ICL). This rule in fact requires that simple photographs, in order to benefit from the so-called ‘related rights’ protection under the Copyright Law, must be accompanied by the name of their author and the date of their creation, which, in digital images, can be imprinted in an ineliminable and unchangeable manner, e.g. by means of digital marking systems (watermark).
In the case at hand, the defendant company, owner of the TopManagers website, had used and published 142 pictures of personalities from the corporate world, which it had found on the internet without any indication of ownership and date and had therefore used without requesting the consent of the (unknown) rights owners. These photos, however, had been taken by professional photographers working for the plaintiff company, which owned the images, stored them in a confidential database and licensed them to several newspapers. These newspapers had then made them freely accessible on search engines, where they had been indexed, without mentioning the author’s name or date and without the watermark.
In order to reach its decision, the Court first of all recalled the distinction between creative photographs, qualifiable as intellectual works, and simple photographs. The former derive from a real and proper creative act and are the expression of an intellectual and interpretative activity that goes beyond the mere material technique and that confers originality and distinctiveness to the picture; therefore, they enjoy the protection under Art. 12 et seq. ICL, which assigns exclusive exploitation rights to their owner until 70 years after the author’s death. The latter, on the other hand, lacking a creative character, being “images of persons or of aspects, elements or facts of natural and social life” (Art. 87 ICL), have only the more limited protection of related rights applied, granted solely if the images contain the author’s name and the shot’s date and for a maximum of 20 years from such date.
With reference to the case under examination, the Court deemed absent the creative and artistic element, expression of the author’s personality, style and message conveyed by him: the contested pictures were, in fact, mere photographic representations of leading figures in the business world. Therefore, they only qualified as simple photographs, with the previously described terms of protection.
It follows that, according to the first instance judges, the absence of the requisites required by Art. 90 ICL, or the lack of evidence of their existence (which must be provided by the plaintiff), since it does not allow to detect the identity of the author and the date of production of the photo, impedes the operability of the aforementioned twenty-year exclusivity, which cannot therefore be enforced against third parties. Indeed, it is necessary to protect the reliance of anyone who enters into contact with a freely accessible image and uses it, without being able to ascertain the existence of an exclusive right on it nor to determine its author and subsequently request consent to use it. Unless, of course, there is bad faith of the third party, i.e. unless this one was anyhow aware of the origin of the work.
Therefore, the Court has established that, in those cases, the photographs are freely and legitimately usable and reproducible by everyone, without having to ask for consent nor pay the compensations pursuant to Art. 91 and 98 ICL.
It is moreover interesting to note that, according to the Court, it is not sufficient, to consider the pictures equipped with the information referred to in Art. 90 ICL, that these details are recoverable by accessing a private area of a database (since the majority of users would not have the requisite access). Furthermore, it is not sufficient that – as in the case in question – the photographic specimens bear on the lower margin the indication of owner websites, assignees of rights or third parties and generic warning, inserted by Google Images, that the pictures may be subject to copyright. This notice, in fact, is generically affixed by Google to any image that can be found on the search engine, so it cannot in itself determine the bad faith of the reproducer, which instead requires a proven knowledge of the others’ rights related to copyright on the image itself.
In conclusion, it can be highlighted that the judgment commented upon here and the enshrined principle, dissimilar from what was established in previous judgments that were more protective of simple photographs, contribute to placing a limit on the phenomenon of the so-called copyright troll, i.e. the relentless search for copyright infringements in order to obtain economic advantages. On the contrary, prevalence is given to the users’ trust in the digital era: given the ease with which images can circulate and be disseminated and shared on the web, the copyright must result from them in a clear and objective way, thus it is the responsibility of the pictures’ authors to adopt appropriate measures (including technological ones, such as watermarking), necessary to protect their own rights.
