[Guest post] Rome court rules that iconic photograph of judges Falcone and Borsellino is not a photographic artwork

In this guest contribution, Ilaria Gargiulo (DGRS Studio Legale) discusses a recent decision of an Italian court which shows that, even for iconic photographs, fulfilling the originality requirement for copyright protection is not necessarily a given.

Here's what Ilaria writes:

Rome court rules that iconic photograph of judges Falcone and Borsellino is not a photographic artwork

The photograph taken on 27 March 1992 of judges Giovanni Falcone and Paolo Borsellino by photo reporter Tony Gentile during a conference is perhaps one of the best-known images in recent Italian history. The picture, portraying them smiling one next to the other, has become, over the years, a symbol of the fight against the “mafia logical system”:

The iconic photograph of judges Falcone and Borsellino by Tony Gentile

However, according to the Rome Court of First Instance (decision 14758/2019), the photograph above is not sufficiently original to be considered a photographic artwork protected under Article 2 of the Italian Copyright Act (Law No 633/1941).

The decision was issued in the context of proceedings brought by Gentile against RAI - Radiotelevisione Italiana, the Italian national public broadcasting company, over the unauthorised use of the image. 

The Rome court pointed out at the very outset that, historically, photographs were not protected by copyright under Italian law. This choice, which dates back to 1941, “was determined, on the one hand, by the importance of the role of pictures to the cultural industries, so that limiting as much as possible any monopoly on them would be preferable; on the other hand, by the difficulty of finding a creative quid in photographic works which would allow to distinguish the technical nature of the process from to the photographer’s personal contribution in reaching the final result”. 

The choice of Italian legislature, however, was at odds with the Berne Convention, and the law was eventually amended. 

Currently, Italian law protects two types of photographs: 

• “simple” (semplici) photographs, which are protected for 20 years, and 
• photographic artworks which are protected by the 'full' copyright term of life plus 70 due to their originality, the latter to be understood in the sense of Article 6 of the EU Term Directive (“author’s own intellectual creation”). 

The distinction between simple photographs and copyright-protected photographs must be made having regard to the level of creativity at issue, this being something that has proved thorny to address satisfactorily. 

As a matter of fact, a jurisprudential trend has been to lower the creativity level threshold for photographs to access the full copyright protection, by requiring only that the photographer includes his own style in the picture and sensitivity. A different trends aims instead to adopt more restrictive criteria, by making reference to the originality of the framing, to light, perspective and so on (as per the CJEU Painer decision). 

In the case at issue, the more restrictive approach has prevailed. 

The Rome court considered that the picture of Falcone and Borsellino must be considered a “simple” photograph, because the image would be a “proof, a sort of a description of a certain situation, a moment of smiling and relaxation of the two judges in the middle of a congress”. The value of the snapshot thus lies in the presence of the subjects pictured and in their stories, not in the technique used (for example in terms of choosing the pose, the lights or the scenery). 

The decision found that, for a photograph to be considered an artwork, what is required is “a long and accurate choice of the place, the subject, the colours, the perspective and the light by the photographer and that it becomes real in one unique and unrepeatable snapshot in which the author synthetises his vision of the object”. In sum:

• the photographer must have in mind a precise creative objective having an artistic value, which is sufficiently original (e.g. like the one required for a painting);
• the picture must be the expression of a precise artistic project, a style and a creative moment. 

Only if realised according to these criteria, a picture can be considered a photographic artwork and, as a consequence, is protected under Italian Law for the full term of life plus 70 years. In the absence of this, the photograph at issue will likely be still protected against, eg, unauthorised reproduction, but only for a term of 20 years from its creation (which had lapsed in this case). 

It is not the first time that the Rome court adopts the more restrictive criteria in assessing a photograph Indeed, in a similar matter in 2003, in the case of a photograph of an artist playing the guitar and singing during a public exhibition, the court considered that the author’s contribution was only linked to the material reporting of a certain event and did not display the level of originality required under copyright law.