The protection of photographic works and the right to report: a recent ruling by the Milan Court of Appeal

The Milan Court of Appeal has recently ruled on the level of protection that can be attributed to photographic works.

The case originates from an action brought before the Court of Milan by Copytrack GmbH against RCS Mediagroup S.p.a., claiming compensation for damages suffered due to the defendant's illegal appropriation of the photographic works "Eclipse" by Ryuunosuke Takeshige and "Dalai Lama" by Peter Hoennemann. Copytrack contested the defendant's reproduction without obtaining prior consent for the two works on the Corriere della Sera online website.

The Court of Milan recognised both the authorship of the two photographic works in the hands of Ryuunosuke Takeshige and Peter Hoennemann and the active legitimacy of Copytrack.

With regard to the two photographs, the Court focused on the difference between a "protected work" and a "simple photograph": the former is protected under Article 2 No. 7 of the Copyright Act (LDA infra), the creative capacity of the author is denoted, which allows the author to arouse suggestions that transcend reality; the latter is protected by Articles 87 and ss. of the same law, which consists of a mere representation of reality made by means of refined and complex photographic techniques.

Only the photograph called "Eclipse" was recognised as a "protected work," while the photograph "Dalai Lama" was classified as a simple photograph, thus deriving two different types of protection.

In fact, for the simple photograph, Article 90 of the LDA requires that the name of the photographer and the date of production should be indicated in the shot; in the absence of such information, the reproduction of the image will not be considered abusive and no compensation will be due, except for proof of bad faith on the part of the reproducer. For these reasons, nothing was awarded to the plaintiff for the photograph depicting the Tibetan leader; however, the right to damages was awarded for the reproduction of the "Eclipse" photograph. The fact that the image had been published, not for patrimonial purposes but, in the exercise of the right to report, as explained by the Court of Milan, "is irrelevant, since even in such a case there is an obligation to indicate, when possible, the source (art. 65 c. 2 LDA)."

RCS Mediagroup S.p.a. appealed the first instance decision on the basis of the erroneous attribution of the work "Eclypse" to Mr. Takeshige and on the incorrect qualification of the same photograph as a protected work, resulting in the inappropriate application of Article 2 of the LDA. In addition, the appellant challenged the part of the judgment in which the use of the image in the exercise of freedom of the press rights was deemed irrelevant.

Copytrack requested the dismissal of the appeal, proposing a cross-appeal, believing that even for the photograph named "Dalai Lama" the requirements for obtaining damages existed because the appellant had reproduced the photograph in bad faith.

The Milan Court of Appeal, in partial reform of the first judgment, confirmed the authorship of the works respectively to the two authors and the existence of the requirements for the qualification of a protected work only for "Eclypse," but, at the same time, sanctioned that in the case under consideration the appellant was not obliged to pay damages recognised in the first instance to the respondent.

In fact, Article 65 of the LDA allows the reproduction of protected works for the purpose of exercising the right to report news if the topics covered are to be considered current. In this case, the "Eclypse" photograph had been reproduced within an article on fake news, a topic that certainly could be considered topical and of interest to readers. In such a case, the reproducer is obliged to indicate the source of the work and the author's name, unless this is impossible to do so. For this reason, the court did not hold Mediagroup S.p.a. responsible for the violation of Article 65 of the LDA, holding that it was impossible for the appellant to identify the owner of the rights to the image. Indeed, there was no indication of the photographer in the photograph, and it was freely available on the web. In addition, the Court found that there was a lack of standing on the part of the appellee: the right to the indication of the name in the reproduction of the work does not belong to patrimonial rights and, consequently, could only be asserted by the author of the photo and not by the assignee of the patrimonial rights.

For these reasons, the Milan Court of Appeal rejected all the claims brought by Copytrack in the first instance.