The Court of Bologna rules on photographer's authorial rights and photographs posted on social networks.

The Court of Bologna recently ruled on the publication of a photograph in newspapers, stating that when there is a public interest, it limits the exclusive rights of the author. While the latter cannot oppose the reproduction and dissemination of the image, he is still entitled to receive fair compensation. However, the newspaper wishing to publish a photograph depicting a news personality must obtain the author's permission in advance, if the author is known.

It is not sufficient for the owner of the social profile on which a digital content was posted to assume that he or she holds the copyright to the photograph. If the photo was initially shared on a third party's Facebook profile, and not by the person who took it, this presumption has no value.

Bad faith cannot be equated with negligence, as it implies intentionally malicious behavior. Accordingly, bad faith cannot be said to exist in the case of downloading a photograph posted on a third party's Facebook profile without a digital watermark, unless it can be proven that the person who reproduced the photo was already aware of the author's identity at the time of publication. Such proof is the responsibility of the author of the photograph.

Furthermore, for the purposes of proving the reproducer's bad faith, the fact that the content was downloaded without first seeking permission from the owner of the social profile on which it was posted is irrelevant. Nor can acceptance of the risk of infringing the rights of third parties (as in the case of the Facebook profile holder) be considered bad faith against the author of the photograph.

Finally, any subsequent agreements reached between the reproducer and other news outlets that published the same photograph without consent do not constitute evidence of bad faith.

Photography and fashion. Clovers obtains a favorable ruling from the Court of Milan on the unauthorized use of a photograph on a fashion collection.

Gianpaolo Todisco – Partner

Laura Bussoli - Associate

One of the gaments of the collection.

Last week the Court of Milan sentenced the company founded by stylist Antonio Marras to pay damages to the American photographer, Daniel J. Cox, for the unauthorized reproduction of a photograph of the latter on clothing.

Daniel J Cox is one of the most successful nature photographers and author of several covers of National Geographic magazine and he know as being the author of a monographic book dedicated to wolves.

The controversy arose when Fashion designer Antonio Marras used this image without the author's consent to develop its fashion collection.

The image was reproduced on a series of women's garments and presented during the woman’s 2014-2015 F/W fashion show in Milan and the collection was distributed and marketed worldwide.

After the parties unsuccessfully completed negotiations aimed at settling the case, the photographer invoked injunctive relief against unauthorized use of the image as well as compensation for damages quantified at the request of the same in the so-called price of consent.

The Court ruled that the image printed on several garments created by Marras coincided with the photograph shot by the plaintiff and met the requirements of the artistic and creative character necessary to access the "enhanced" protection provided by the Copyright Law.

Indeed, Italian copyright law grants photographs a dual level of protection, distinguishing between photographic works (or artistic photographs) and simple photographs.

The orginal photograph. Copyright Daniel J. Cox. - Natural Exposures. All rights reserved.

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.

Human Feelings as Drugs. The Court of Appeal of Milan overturns the decision.

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.

THE DIFFERENCE BETWEEN SIMPLE AND ARTISTIC PHOTOGRAPHY

Recently the Court of Milan has again expressed itself on the notion of artistic and simple photographs.

The case was brought by a photographer alleging the infringement of the copyright of a photograph entitled "Human Feelings as Drugs", consisting of the production of photographs, prints and posters reproducing medicine vials in various colors, bearing emotional labels "Empathy", "Hope", "Love", "Peace" and "Joy". The artist intended to spread a message of ​​taking "feelings as medicines", so as to "allow the patient an instant reawakening of perception and a reintegration within the vital flow of emotions".

Plaintiff complained an illegal reproduction of his photograph through a series of pendants - matched with necklaces and bracelets - that would have reproduced their own phials, with identical words reproduced on the labels and asked for an injunction, the award of damages and publication of the decision.

The Court stated that in the matter of photographic works, the artistic character presupposes the existence of a creative act as an expression of an intellectual activity compared to the mere material technique. The reproduction of the photographer must transmit a message that is further and different from the objective crystallized representation, consisting in a subjective interpretation suitable to distinguish a work among other analogous ones having the same representation. The requirement of the creativity of the photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted into the picture his own imagination, taste, and sensitivity, so as to transmit his emotions.

With respect to photography, the artistic nature of reproduction can be inferred regardless of the subject reproduced.

In the case under examination, the Court has excluded the artistic nature of the images, since it is impossible to recognize precisely those aspects of originality and creativity that are necessary for recognizing full protection under Italian Copyright Law. Plaintiff did not indicate the manner in which the photograph was shot or a selection of lights or even specific doses of light and dark tones.

The Court also dwelt on the further infringement of copyright as an overall artistic work excluding the plagiarism of the defendant as it found that the comparison between the two works highlighted certain important differences between the two artistic works.

Do you use Instagram?

Instagram, like many other image-sharing platforms, needs you to grant them the right to display your images, or else they would be violating your copyright by displaying your pictures in the app. Obvious? Maybe, but there’s more to it…

1.    You grant them a License

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels…

Does this mean you still own your pictures? Well, yes, but they can use it whenever they want. At the moment, they only use user pictures in seemingly harmless instances like blog posts and whatnot, so it may be true that the chances of Instagram exploiting user content for profit aren’t that high. That clause, however, is still there. Not to mention that if you’re on Instagram, you already agreed to it.

2.    Not unless your account is set to ‘Private’

…except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. 
Great! But what if you use Instagram to gain followers? 

3.    Reps and warranties…

You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, DO NOT TAKE ANY PICTURE FROM THE INTERNET AND POST IT IN YOUR INSTAGRAM. 

4.    You wanna read the last sentence in that quote again? Ouch.

You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, the people over at Instagram have their backs covered. They won’t waste a penny if you get in trouble. This is why you don’t want to get sued (other than, well, obvious reasons). If the entity that sues you decides to include Instagram in the lawsuit (which they probably will since it was their service you used), it is my understanding from this clause that you could end up paying for your lawyer AND Instagram’s lawyer. That is, in addition to any damages you owe for copyright infringement, should you be found guilty. Ouch? OUCH.

By the way… Instagram is awesome, though, check it out if you haven’t done so already.