When is it possible to state the artistic character of the photographs? When and how are the photographs protectable by copyright?
In this post we talk about:
According to the provisions of Article 1 and 2 of the Italian Copyright Law, the works of creative character are distinguished by:
- Newness: it is characterized by distinctive elements distinguishing the same from similar and previous works
- Originality: born as a result of an intellectual process showing the personality of the author
- Form of expression: it goes beyond the thought and it is concrete
The photographic work, as above described, is protected with copyright from its creation up to 70 years after the death of its author, and it is mandatory to mention the name of the protographer (every contrary agreement is to be considered invalid).
The simple photograph, in which there is the use of the mere photographic technique, i.e. photos depicting people, landscapes, or facts of social life, enjoys instead the more limited protection of 20 years provided for by article 92 of the copyright (related rights) and the mention of the photographer is subject to any agreements between the parties.
In both cases, when the photographer makes its photographs, he is the owner of both economic and moral rights.
With the judgement n.10692/2015 of 24 September 2015 the Court deals with the following issue: the nature of photographic work of some photographs of plates and dishes of cakes, made by a professional photographer. In this case the Court, while acknowledging
“high professionalism in the care of the frame and the ability to successfully catch the subject” (the Court specifies that these are elements that can also be present in the simple photographs) considers that there is not “the expression of the original and personal interpretation of the author”.
It is interesting to point out how the Court highlights that the distinction in order to define a photograph a photographic work or a simple photograph cannot be identified in the subject of the photograph (in this case a plate of cakes) but in the presence
“of those aspects of originality and creativity that are essential to recognize the protection of the photographic work”.
The Court affirms that originality and creativity
“must transcend a good photographic technique, but convey emotions that go beyond the portrayed persons or objects and, ultimately, must express in an absolutely distinctive way the author’s personality”.
The above mentioned concept appears to be reiterated also in the judgment n.10279/2015 of 15 September 2015, which considered artistic some photographs representing a famous singer, because
“they are not only connoted by undoubted technical accuracy, but are enhanced by a strong expressive characterization, clearly perceptible even through the overall approach of each photographic portrait, which is a unique combination of perspectives, proportions, colours, distances, lights and shadows. Each portrait helps to bring out different emotional nuances: in the photograph of the cover is given prominence to elements of strength and determination, therefore of assertion of personality, while in the images prevail dreamy atmospheres of vague melancholy and reflection”.