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People perceive photographs on the Web as if they are publicly available, without an owner and therefore disposable at will. That’s wrong. The following article focuses on:
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In Italy, photos and other online content are protected by Copyright Law (Law No. 633 of 22 April 1941) in a number of ways; they do not belong to just anyone simply by being displayed on the Web. In most cases, it is necessary to report to the rights owner in order to avoid regrettable situations.
At the same time, blog or website owners who publish a variety of original content, including photographs, may want to protect them by preventing others from using those contents, unless they are credited with the rights or receive fair compensation.
The regulation governing photographs is quite complex. In order to understand what rights the author is entitled to, it is necessary to distinguish between different types of photographs.
It is essential to understand that not all photos are the same. Our legal system identifies three types:
According to the law, the first is the photographic work characterized by its creative nature, in which the author’s personal contribution can be clearly identified; it is protected throughout the author’s life and up to 70 years after his death.
The second category is represented by any shot that, not conveying the artist’s distinctive vision, merely reflects reality (portraits, landscapes, photos for catalogues, etc.). A simple photograph is protected for 20 years from the moment it is taken. In some cases, the right on photography arises by law directly with the commissioner.
Finally, purely documentary photos, i.e. mechanical reproductions of objects, are not protected.
We shall now examine the first two in more detail (the distinction between them is far from straightforward).
In both cases, authors’ rights arise when the photograph is taken. In the case of artistic photographs, these include moral rights (for example, recognition of the authorship of the photograph) and rights of exploitation. In the case of simple photography, the photographer is only entitled to property rights.
More specifically, the author of a photographic work is entitled, in addition to the moral right over it, to the rights of publication, reproduction, distribution, communication to the public, editing, etc. (art. 12 et seq. LA). The author of a simple photograph, on the other hand, is only entitled to the reproduction, diffusion and distribution rights provided for by art. 88 of the LDA.
However, a minor case law current also recognizes a moral right of authorship for authors of simple photographs.
As far as simple photos are concerned, the photographer who does not credit the photo may be unable to claim financial rights to it.
The photographer must always mention the name of the owner and the date the shot was taken (art. 90 LA). In the absence of such indications, the author will not be able to claim against the person who uses his/her photo for economic purposes, unless he can prove bad faith.
Modern case law, however, has addressed this issue, being aware of the anachronism of a rule dating back to the age of analogue photography where accreditation could only take place physically on the photo. In the judgement of the Court of Rome of 01.06.2015, the court ruled that the provision of art. 90 must be considered complied with, even if the accreditation information is not attached at the bottom of the photo itself, but simply next to it or otherwise identifiable with ordinary diligence.
This orientation does not exclude, however, that the best strategy to protect the author is to insert the credits properly.
A different question arises from the perspective of someone who finds a photo that would be ideal for his or her article on his or her website and wants to reproduce it. If the photo has a creative content that qualifies it as an artistic photograph, they should certainly proceed by asking the owner of the photograph for permission to reproduce it regardless of its accreditation.
If the photo is a simple photograph, it would be advisable to carry out a brief search to identify its owner. If you do not find a copy of the photo with the proper accreditation, it might be available for reuse, except if the owner’s identity can be established through due diligence. In this case, it is recommended to contact the owner and ask for permission to reproduce it.
For a photograph to be properly accredited, it must bear the date of the shot and the name of the photographer. This is a very basic procedure that protects the author in the event of undue reproduction. In addition, stealing a photo from a social network profile can lead to prosecution by the owner of the profile, as the origin and, in some cases, the date of the photo is unequivocal.
Maria Giulia Carlutti