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.