THE PROTECTION OF PHOTOGRAPHS: BETWEEN WORKS OF ART AND ORDINARY WORKS.

Recently, the Milan Court has once again ruled on the concept of artistic photographic work and simple photography.

 The case stems from the alleged copyright infringement of a photograph called “Human Feelings as Drugs”, consisting in the creation of photographs, prints and posters reproducing vials of medicines of various colours, bearing the words “empathy”, “hope”, “love”, “peace” and “joy” with the phrases expressive of the related feeling or emotion. In

project, the artist intended to realize the idea of ​​taking “feelings as medicines”, in order to “allow the patient an instant awakening of perception and a reintegration into the vital flow of emotions”.

 The plaintiff complained that the defendant had unlawfully reproduced a series of pendants—matching necklaces and bracelets—that allegedly reproduced his own vials, with identical sentiment names and accompanied by the same illustrative phrases. He therefore sought an injunction, damages, and publication.

 The Court reiterated that, in the case of photographic works, artistic character presupposes the existence of a creative act as the expression of an intellectual activity that takes precedence over mere material technique. The photographer's method of reproduction must therefore convey a message that is more than just a crystallized objective representation, rendering a subjective interpretation capable of distinguishing one work from other similar works with the same subject matter. The requirement of creativity in a photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted his own imagination, taste, and sensitivity into the shot, thus conveying his emotions.

 In the case of photographic works, the artistic nature of the reproduction cannot be deduced from the notoriety of the subject or object 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 – and the relative judgment must instead be independent of the object or subject itself reproduced.

 In this case, the Court ruled out the artistic nature of the contested images, as it was impossible to identify precisely those aspects of originality and creativity that are essential to granting full protection under Article 2 of the Copyright Act. According to the Court, the plaintiff failed to indicate precise framing, careful selection of lighting, or even specific balances of light and dark tones that the Panel might appreciate. Nor do the specific indicators that identify the photographer's personal and distinctive touch, or the ability to manipulate the subject in such a way as to evoke emotions, appear to be present here either.

 The Court also focused on the further violation of copyright understood as an overall artistic work, excluding plagiarism by the defendant.

 According to the panel, the comparison between the two works highlights decisive differences, capable of conferring a different, non-superimposable aesthetic value.