THE PRICE OF CONSENT.

The Court of Turin recently ruled on the issue of publishing photographs on a website without the author’s prior consent, and determined the amount of damages based on the “price of consent” principle.

The author of several photographs, upon discovering that they had appeared on a web platform, requested, first, that he be recognized as the holder of the economic exploitation rights to the photographs and, second, that the economic exploitation rights to which he is entitled be recognized and, above all, quantified.

The owner of the photographs also sought recognition and penalties for acts of unfair competition, specifically parasitic competition, committed by the unauthorized user of the photographs, who, in violation of the rules of professional ethics, systematically exploited the owner’s work and engaged in activities potentially capable of depriving the competitor of market share.

In resolving the dispute, the Court of Turin ruled not only that the unauthorized publication of another person’s photographs on a website by an unauthorized third party constitutes a violation of economic exploitation rights, but also that such a violation must be penalized by applying the “price of consent” principle.

More specifically, according to this criterion, the penalty to be imposed for the unlawful exploitation of copyright must be calculated based on the amount that the copyright owner would have received as compensation following the conclusion of an agreement with the user. And the quantification of the “price of consent” must be based on the fee previously requested by the rights holder for the transfer of each individual photograph to third parties.

With regard, however, to the claim for damages in connection with the alleged acts of unfair competition in the form of parasitic competition, the Turin judges ruled that, although multiple acts contrary to the principles of professional integrity—as well as aimed at the systematic exploitation of the work of the holder of the rights to exploit the photographs—could be identified in the case at hand, no pecuniary or non-pecuniary damages could be awarded to the plaintiff because they were not adequately proven.