The IP Court of Rome rules on the protection of non-creative photographs

With decision no. 4361/2021, published on 4 March 2021, the IP Court of Rome ruled on the protection of photographs pursuant to Copyright Law no. 633/1941 and ascertained that the author of a so-called “simple photograph” has the right to compensation for damages deriving from its unauthorised publication by another party.

As recalled by the Judge in the decision commented upon here, the Italian Copyright Law (ICL) provides for different categories of photographs and grants each one a different level of protection:

1. the first category consists of photographic works, namely photographs that have a creative character and that, due to their originality, are full-fledged intellectual property works pursuant to Article 2 (7) ICL. The relevant authors enjoy the moral and economic copyright protection provided for by Articles 12 et seq., 20 et seq. and 171 et seq. ICL. More specifically, a photograph can qualify as a photographic work when, thanks to its framing, its perspective, the light or the choice of the subject, it is able to convey a message further and different to the mere objective representation of what is photographed, thus manifesting the author’s personal interpretation of the portrayed subject;

2. the second category are simple photographs, i.e. “pictures of people or aspects, elements or facts of natural or social life” that do not have a creative character but are marked by a personal contribution by the photographer (at least manifested through the search of the subject) and are protected – in more limited way than photographic works – by related rights pursuant to Article 87 et seq. ICL. In other words, these are photographs in which a personal contribution by the photographer is visible, but manifested under the technical viewpoint rather than the artistic one;

3. the final category are documentary photographs under Article 87(2) ICL, defined as mere photographic reproductions of writings, documents, business papers, objects, technical drawings and similar products, which do not enjoy any copyright protection.

In the dispute commented upon here, the plaintiff claimed that the defendant had published on Facebook, without his consent, a colour photograph taken by the same plaintiff, depicting the historic centre of Frosinone at night. The plaintiff then asked the Judge to acknowledge that his photograph consisted of a photographic work pursuant to Article 2(7) ICT and that the unauthorised publication of it by the defendant infringed his moral and economic right and entitled him to ask for compensation for damages of EUR 1,100.

This categorisation, however, was not endorsed by the Judge, who held that the photograph was not sufficiently creative and original. However, since it was characterised by a particular technique, which made it possible to perceive the city of Frosinone as a painting rather than as a real photograph, the Judge classified it as a “simple photograph” protectable by related rights pursuant to Article 87 et seq. ICL. Therefore, since the photographer has the exclusive right to reproduce and disseminate his own photograph under Article 88, the Court of Rome found that the unauthorised publication on the defendant’s Facebook page was an infringement of such right.

Secondly, according to the Judge, although the author of a so-called simple photograph does not enjoy the moral protection provided to the authors of photographic works, he does at least enjoy the right of paternity on his photograph. This interpretation, according to the Court, is grounded on Articles 90(1), 91 and 98 ICL, which provide the photographer’s right to be mentioned as the author even in the case of non-creative photographs. In  light of this, since – according to a recent case law of the Italian Supreme Court (commented upon here on this blog) – the right of paternity of a work shall be deemed infringed not only when such work is expressly attributed to others, but also when the relevant author is not mentioned as the author of the photograph, in this case, the failure to indicate the plaintiff’s name in connection with the published photograph infringed his right of paternity of the same.

In the end, therefore, the Court of Rome ascertained the infringement of the photographer’s paternity and related rights and ordered the defendant to compensate for moral and material damages of EUR 550 plus interest, whilst it dismissed the plaintiff’s request to order the defendant to publish the decision due to the defendant’s limited use of the photograph.