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Copyright and protection of photographs as creative works

Court of Milan, Section A, Judgment no. 2539 of 23/04/2020

date: 07.06.2020
Area: Intellectual Property

With a recent pronouncement, a nature photographer, author of a famous photo depicting a howling wolf, obtained recognition of copyright protection for his work from the Court of Milan. In the present case, the photograph had been downloaded from the web and reproduced by a designer on a series of garments, without the photographer’s consent or mention. The Court of First Instance, called upon to rule on the infringement of the author’s moral and material rights, found that the infringement existed and ordered the defendant to pay damages and legal costs of the proceedings.

In particular, the Court held that the photograph in question could not qualify as  ‘simple’ photography, but as a genuine photographic work of a creative nature, and as such, protected by Article 2(7) l.d.a. In fact, as evidenced by doctrine and copious case law, the discrimination which allows a photograph to be qualified as a work of genius is the creative capacity of the author. Such ability is considered existing when the personal imprint of the author, the study and choice of the subject and the executive moment of realization and re-elaboration of the shot are such as to arouse “suggestions that transcend the common aspect of the represented reality”. On the other hand, “simple” photography is the mere representation of reality, even if it is made with complex or particularly refined techniques.

In the present case, the Court considered that photography reflected the author’s considerable artistic ability: the judges identified the image as the expression of a precise creative will, a wise use of photographic techniques in order to convey particular suggestions to the observer and a study of the subject to be depicted. In addition, these conclusions were corroborated by the recognition of the protection of the work in the United States and, above all, by the placement of the photograph within a prestigious monograph, as well as by the substantial identity of the image with respect to other representations of the same author that appeared in important trade magazines.

Copyright and protection of photographs as creative works

Court of Milan, Section A, Judgment no. 2539 of 23/04/2020

date: 07.06.2020
Area: Intellectual Property

With a recent pronouncement, a nature photographer, author of a famous photo depicting a howling wolf, obtained recognition of copyright protection for his work from the Court of Milan. In the present case, the photograph had been downloaded from the web and reproduced by a designer on a series of garments, without the photographer’s consent or mention. The Court of First Instance, called upon to rule on the infringement of the author’s moral and material rights, found that the infringement existed and ordered the defendant to pay damages and legal costs of the proceedings.

In particular, the Court held that the photograph in question could not qualify as  ‘simple’ photography, but as a genuine photographic work of a creative nature, and as such, protected by Article 2(7) l.d.a. In fact, as evidenced by doctrine and copious case law, the discrimination which allows a photograph to be qualified as a work of genius is the creative capacity of the author. Such ability is considered existing when the personal imprint of the author, the study and choice of the subject and the executive moment of realization and re-elaboration of the shot are such as to arouse “suggestions that transcend the common aspect of the represented reality”. On the other hand, “simple” photography is the mere representation of reality, even if it is made with complex or particularly refined techniques.

In the present case, the Court considered that photography reflected the author’s considerable artistic ability: the judges identified the image as the expression of a precise creative will, a wise use of photographic techniques in order to convey particular suggestions to the observer and a study of the subject to be depicted. In addition, these conclusions were corroborated by the recognition of the protection of the work in the United States and, above all, by the placement of the photograph within a prestigious monograph, as well as by the substantial identity of the image with respect to other representations of the same author that appeared in important trade magazines.