The protection of photographs in the Italian legal system

Italian Copyright Law distinguishes three scenarios for the protection of photographs, with varying levels of protection: Photographic Works of art (or Artistic Photographs), Simple Photographs and Photographs of Material Objects.

Let’s look at these three categories in detail.

These are among the works protected by the Copyright Act. They enjoy full copyright protection. Like any other work of art, the author's exclusive rights arise with the creative act, without any formal requirements.

The main substantive requirement to qualify for protection as a work of art is the existence of creative character, which consists of a manifestation of the author's personality.

Indeed, the artist's creativity is not limited to reproducing reality, but creates suggestions through the creative contribution of his personality

In short, there must be a prevalence of the artistic profile over the merely technical aspect, i.e. a creative act that is the expression of an intellectual activity that is pre-eminent over mere photographic technique.

Creativity is found whenever the author inserts his imagination, taste, sensitivity, emotions into the shot, not limiting himself to a faithful reproduction of reality.

The copyright on these works lasts, as for any work protected by copyright, seventy years after the death of the author.

They are defined by Italian copyright law as 'images of persons or of things relating to natural or social life' and lack any creative character; they are considered mere reproductions lacking originality, even if they are taken with technically sophisticated means.

These photographs are protected in a more limited manner by Italian copyright law, which creates a specific copyright-related right.

In this case, the author has the exclusive right to reproduce and distribute the photograph, but to enjoy this protection, simple photographs must meet additional requirements.

Rather anachronistically in an increasingly digitised world - remember that the rules on photographs in the 1941 Italian Copyright Act were drafted in the 1970s - the law requires that the specimens bear the name of the photographer and the year of production on the photograph itself.

If these indications are missing, reproduction by a third party is not illegal.

In order for the photographer to receive compensation for use of this type of photograph, it is not enough to prove that the user was negligent in not investigating the identity of the author and the date of creation, instead he must prove that the person who reproduced the photo was aware of the author's identity and knowingly infringed his rights. Quite a high bar.

The term of protection for simple photographs is twenty years from the date they were taken.

Then there is a further type of photograph that does not enjoy any protection.

These are photographs of writings, documents, business papers, material objects, technical drawings and other similar things.

They are excluded from protection due to their purely documentary function, as in the case of a photograph in a catalogue.

In summary, while photographic works enjoy maximum copyright protection, simple photographs have limited protection as copyright-related rights (subject to formal requirements) and simple photographs, with mere documentation purposes, receive no protection at all under the Italian Copyright Act.

So, what can we learn from this?

If you use other people's photographs that you have found on the Internet, you must ensure that you do not infringe the author’s rights. In particular, for simple photographs, check that the author's name and year of creation are not reproduced on the photograph. You may also find it useful to use the Google's image search tool that allows you to filter the results according to so-called 'usage rights', in order to identify freely reproducible photographs or - in any case - the type of licence required for their use.

If, on the other hand, you are a photographer – whether professional or amateur – the advice is to publish online or otherwise disseminate your photographs only if they are watermarked with your name and year of creation.

Article published in today's Lexology Newsletter, written by Ettore Fassina.