The difference - which is not always easy in practice - is traced by art. 87 of Italian Copyright Law which define as simple photographs "images of people or aspects, elements or facts of natural and social life, obtained by photographic or similar process, including reproductions of works of figurative art and film stills" and recognize the same protection as neighboring right.
Conversely, there is no explicit legislative definition of an artistic photographic work in the Copyright Law and this is left to a “case by case” "practical" evaluation by judges on the basis of a series of indexes.
Artistic photographs are treated like other artistic works have access full protection (up to 70 after the death of their author), whereas simple photographs, on the other hand, enjoy limited protection (20 years from the date of photograph’s production) and the photographer is only entitled to fair compensation in case of unlawful use.
A first and fundamental point of the decision rendered in the Cox/Marras case, concerns the recognition of the artistic value of photography: in the Court’s opinion the artistic value lies "in the creative capacity of the author, i.e. in his personal imprint, in the choice of the subject to be portrayed as well as in the moment of realization and reworking of the shot, such as to arouse suggestions that transcend the common aspect of the reality represented.
The choice to portray the animal in its natural environment and in adverse climatic conditions makes the shot "the result of study and careful photographic analysis by the author" and contributes to the recognition of its artistic value according to the Court.
It is also the technique that comes in this case in relief in order to correctly frame the image within the protected and protectable photographic works: "a wise blurring of the surrounding environment, thus enhancing the expression of the represented subject ... and evoking, in this way, peculiar suggestions in the observer such as to go beyond the mere graphic representation of the animal (...) "a wise use of chiaroscuro and the use, with creative purposes, of light ". Last, the specific authoritative recognition of the artist in the United States and the publishing of the photograph in a monographic work also helped the Court understand the nature of the work.
Therefore, once the artistic nature of the work has been ascertained, the use by the defendant company for commercial purposes of the photograph, by placing it on an item of clothing included in the women's collection, in the absence of any authorization from the author, "constitutes an open violation of the author's right to compensation for damages".
It is interesting to note that the Court of Milan rejected the defendant's objections to the alleged lawfulness of the use of the photograph, since the same can be found on the Google search engine.
The Court found that - "the mere availability on the web of a photograph certainly does not constitute a presumption of absence of authoritative rights, on the contrary, the burden of ascertaining whether or not third parties have rights".
In conclusion, the Court stated that the work of the photographer Daniel J. Cox should be considered to be protected by copyright law, as a creative work in the particular field of photography, ordering the defendants, jointly and severally, to pay damages to the applicant and ordering the publication of the operative part of the judgment by and at the expense of the defendants in the periodical Vanity Fair.
Through this judgment, the Court of Milan has analyzed several legal issues which are constantly being debated experts in the world of intellectual property.
