With decision no. 14758 of 12 September 2019, the IP Court of Rome dismissed the lawsuit brought by a photographer against RAI-RADIOTELEVISIONE ITALIANA SPA (RAI) for compensationary damages deriving from the use of a photo, portraying the Italian judges Giovanni Falcone and Paolo Borsellino. The photograph was taken by the plaintiff in March 1992 during a congress and, in the meantime, it became iconic (the two judges, both killed by the Mafia, became the symbol of the fight against organized crime).

The plaintiff complained that the photo had been published several times on TV and on RAI’s web site, without any royalties being paid to him, and sought economic and non-economic damages.

The Court, despite it confirming the photographer’s ownership of copyrights in the photo, found that the photo did not qualify as a work of photographic art but only as a “simple” photograph; this led to the refusal of the plaintiff’s request on statute of limitation grounds.

Giving reasons for the decision, the Court recalled that Italian copyright law distinguishes three kinds of photo:

  • photo with a particular degree of originality, protected as a work of art under Article 2 no. 7 of Italian Copyright Law;
  • photo with a “simple” degree of originality, protected by so-called neighbouring rights according to Article 87 et seq. of Italian Copyright Law;
  • photo that is a mere reproduction of objects, devoid of copyright protection according to Article 87 paragraph 2 of Italian Copyright Law.

In the Court’s opinion, the photo at issue does not have a particular degree of originality and thus it cannot be considered as a photographic work of art. Instead it consists of the reproduction of a factual situation – i.e. a moment of relaxation between two colleagues – protected under Article 87 et seq. of Italian Copyright Law. 

In this regard, the Court clarified that for a photo to qualify as a work of photographic art it requires “a long accurate choice of place, subject, colours, perspective, lighting made by the photographer”, so that it consists of “a unique shot that sums up the author’s vision of the subject”.

The Court ruled out that the author of the photo in suit had chosen a particular combination of pose, lights and setting and that he was motivated by the uniqueness of the depicted subjects; in fact, presumably, the photo would not have assumed any subsequent symbolic value if the judges were not killed by the mafia.

To be considered a work of photographic art, continued the Court, a photo “must be the expression of an art project, a style, a creative moment”. Requirements that, in the case at issue, were denied.

The Court concluded that the photo at issue is a “simple” picture and, as such, the duration of the author’s rights to the work is for 20 years, according to Article 92 of Italian Copyright Law. Therefore, considering that the photo was taken in 1992 and that, the author’s rights are time-barred, the Court dismissed the request of the plaintiff and ordered the photographer to pay legal fees.