Recently the Court of Appeal overturned a judgment rendered in September 2018 by the Court of Milan, which we discussed in this blog
The case was inspired by the alleged violation of copyright of a photograph entitled "Human Feelings as Drugs", consisting in the creation of photographs, prints and posters reproducing vials of medicines of various colors, bearing the words "empathy", "hope", "love", "peace" and "joy" with the expressive phrases of the related feeling or emotion. Artist Valerio Loi intended to realize the idea of taking "feelings like medicine", so as to "allow the patient an instantaneous awakening of perception and a reintegration within the vital flow of emotions".
The plaintiff complained about the illegal reproduction by defendant, Queriot de la Bougainville of a series of pendants - combined with necklaces and bracelets - that would have reproduced their own vials, with identical names of feelings, accompanied by the same illustrative sentences. He therefore invoked injunctive relief, damages and publication of the judgment. The Court of First Instance had reiterated that with regard to photographic works, the artistic character presupposes the existence of a creative act as the expression of an intellectual activity which takes precedence over mere material technique.
That is to say, the photographer's method of reproduction must convey a message which is additional and different from the crystallized objective representation, that is to say, it must be a subjective interpretation capable of distinguishing a work from similar works having the same subject matter.
According to case Law, the requirement of creativity of the photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted in the shot his fantasy, his taste, his sensitivity, so as to transmit his emotions. As far as photographic works are concerned, the artistic nature of the reproduction cannot be deduced from the notoriety of the subject or object that is portrayed, since the value of the artistic work is appreciated by virtue of formal canons - which express the author's personality in an absolutely characteristic and individualizing way - since the relative judgement must be made regardless of the object or subject itself reproduced.
The Court of first instance had excluded the artistic nature of the litigious images, since it was impossible to recognize precisely those aspects of originality and creativity that are indispensable to recognize the full protection under Italian Copyright Law. According to the Court, the plaintiff did not indicate precise shots or a careful selection of lights or particular dosages of light and dark tones that the Court could appreciate. Nor did the photograph highlight a personal and peculiar imprint of the photographer.
In overturning the decision, the Court of Appeal of Milan, held that: "the presence of the creative or non-creative character in the photographic work must be verified, assessing unitarily the subject, reproduced in the photograph, and the photographic modalities with which the subject was rendered, given that the emotional suggestion of the photographic work derives precisely from the close connection existing between the subject photographed, obviously three-dimensional, and the particular modalities with which the same is rendered in the two-dimensional photographic image. On the other hand, the creativity, suitable to give the photographic work artistic value, on the one hand, does not coincide with the concept of creation, originality and absolute novelty, but refers to the personal and individual expression of an objectivity, belonging to the categories listed in the Italian copyright Law, so that the existence of a creative act, even a minimal one, is sufficient, on the other hand, is not constituted by the idea itself, but by the form of its expression, that is to say by the way in which the idea is concretized in the external world [...]" and that therefore "There is no doubt that the photographic work in question presents a relevant rate of creativity [...]".
In conclusion, the Court decided that Valerio Loi's work 'Human Feelings as Drugs' should be considered to be protected by copyright law as a creative photographic work.