A premise: types of photographs and protection regime
There Law 22 April 1941, n. 633 on copyright (“LdA”) recognizes and distinguishes the following three types of photographs, in decreasing order of protection:
- “Creative” photographs”, the subject of a real copyright protection pursuant to art. 2, n. 7, LdA;
- “Simple” photographs”, defined as “images of people or aspects, elements or facts of natural and social life, obtained by the photographic process or by a similar process, including reproductions of works of figurative art and frames of cinematographic films”, which do not reach a sufficient degree of “creativity” and to which the law attributes certain so-called related rights, ensuring protection, albeit less than that for creative photographs, to the author of the photograph (articles 87 et seq. of the Copyright Law);
- “Documentary” photographs”, which do not give rise to any rights in the hands of the creator. These are photographs which merely reproduce "“writings, documents, business papers, material objects, technical drawings and similar products”.
Protecting creative photographs
The creative photographs constitute works of the mind pursuant to the’art. 2, n. 7, LdA and are protected for 70 years since the author's death. The protection arises automatically with the creation of the work and attributes to the author both property rights (including publication, reproduction, communication to the public, distribution, processing and modification, rental and lending), both moral rights (authorship, integrity of the work, right of unpublished work, right of disclosure and right of repentance).
The protection of simple photographs
The protection of simple photographs is subordinate to the indication of the name of the photographer and year of production of the shot. In the absence of such indications, the use of the image is free, unless it can be demonstrated that the user was aware of such data. The author is recognized some property rights (reproduction, distribution and distribution), while the recognition of a moral right of paternity is the subject of a jurisprudential orientation not unique.
The distinction between creative and simple photographs
The distinction between creative photographs and simple photographs depends on the presence or absence of the CD. creative character: jurisprudence offers a rich overview of criteria for recognizing the presence of creative character in photographic works, giving particular emphasis to the following elements:
- the ability to to capture certain expressions and attitudes;
- the ability to to arouse emotions and evoke suggestions that transcend the common aspect of the reality depicted;
- the ability to convey the author's personality, his imagination, his taste and his sensitivity;
- the ability to seize the moment;
- the ability of photography to stand out from the others;
- theundoubted technical accuracy (to be found in the methods of realization, in the particular and original framing, in the chosen perspective, in the play of light and shadow, in the contrasts, which go beyond the mere reproduction of the chosen subjects;
- the consolidated and enduring success of photography in the community;
- there fame of the professional photographer author of the shot.
The recent extension of the term of protection of simple photographs
With reference to the temporal regime of protection, the Copyright Law originally provided for a duration of 20 years from the production of the shot for simple photographs.
THE'art. 47 of Law no. 182/2025, entitled “Amendment to Law No. 633 of 22 April 1941 regarding the exclusive right to photographs”, instead extended this term to 70 years since the production of photography.
The new discipline Not provides transitional provisions; therefore, to precisely define the temporal scope of application of the modification and its concrete effects (in particular with reference to the photographs already taken), it will be necessary to wait for any interpretative clarifications, including those of a jurisprudential or regulatory nature.
Content edited by Avv. Silvia Mondini Lawyer. Francesca Milani Dr. Ilaria Paradiso
