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

The Court of Milan recently ruled once again on the distinction between artistic photography and ordinary photography.

 The case stems from an alleged copyright infringement involving a photograph titled “Human Feelings as Drugs,” which consists of photographs, prints, and posters depicting vials of medicine in various colors, bearing the words “empathy,” “hope,” “love,” “peace,” and “joy,” along with phrases expressing the corresponding feelings or emotions. In

Through this project, the artist sought to realize the idea of using “feelings as medicine,” in order to “enable the patient to experience an instantaneous reawakening of perception and a reintegration into the vital flow of emotions.”

 The plaintiff alleged that the defendant had unlawfully reproduced a series of pendants—paired with necklaces and bracelets—that allegedly replicated his vials, bearing identical names of emotions and accompanied by the same descriptive phrases. He therefore sought an injunction, compensation for damages, and a public announcement.

 The Court reiterated that, with regard to photographic works, artistic character presupposes the existence of a creative act as an expression of intellectual activity that takes precedence over mere technical skill. In other words, the photographer’s method of reproduction must convey a message that is additional and distinct from the crystallized objective representation, thereby offering a subjective interpretation capable of distinguishing a work from other similar ones depicting the same subject. The requirement of creativity in a photographic work is met whenever the author has not limited themselves to a reproduction of reality, but has infused the photograph with their own imagination, taste, and sensibility, thereby conveying their own emotions.

 With regard to photographic works, the artistic nature of the reproduction cannot be inferred from the fame of the subject or object depicted, since the value of the artistic work is assessed on the basis of formal criteria—which express the author’s personality in a wholly distinctive and individualizing manner—and the relevant assessment must therefore be made independently of the object or subject itself.

 In the case at hand, the Court ruled out the artistic nature of the disputed images, as it was impossible to identify precisely those aspects of originality and creativity that are indispensable for recognizing full protection under Article 2 of the Copyright Law. According to the Court, the plaintiff did not point to specific compositions, a careful selection of lighting, or particular balances of light and dark tones that the Court could appreciate. Nor do those distinctive indicators appear to be present here that identify the photographer’s personal and unique style—that is, the ability to engage with the subject in a way that evokes certain impressions, which are precisely what distinguish a photographic work from a simple photograph.

 The Court also addressed the additional copyright infringement, viewing the work as a whole, and ruled out the defendant’s plagiarism.

 According to the panel, a comparison of the two works reveals significant differences that give them distinct aesthetic merits that cannot be equated.