THE DIFFERENCE BETWEEN SIMPLE AND ARTISTIC PHOTOGRAPHY

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Recently the Court of Milan has again expressed itself on the notion of artistic and simple photographs.

The case was brought by a photographer alleging the infringement of the copyright of a photograph entitled "Human Feelings as Drugs", consisting of the production of photographs, prints and posters reproducing medicine vials in various colors, bearing emotional labels "Empathy", "Hope", "Love", "Peace" and "Joy". The artist intended to spread a message of taking "feelings as medicines", so as to "allow the patient an instant reawakening of perception and a reintegration within the vital flow of emotions".

Plaintiff complained an illegal reproduction of his photograph through a series of pendants - matched with necklaces and bracelets - that would have reproduced their own phials, with identical words reproduced on the labels and asked for an injunction, the award of damages and publication of the decision.

The Court stated that in the matter of photographic works, the artistic character presupposes the existence of a creative act as an expression of an intellectual activity compared to the mere material technique. The reproduction of the photographer must transmit a message that is further and different from the objective crystallized representation, consisting in a subjective interpretation suitable to distinguish a work among other analogous ones having the same representation. The requirement of the creativity of the photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted into the picture his own imagination, taste, and sensitivity, so as to transmit his emotions.

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With respect to photography, the artistic nature of reproduction can be inferred regardless of the subject reproduced.

In the case under examination, the Court has excluded the artistic nature of the images, since it is impossible to recognize precisely those aspects of originality and creativity that are necessary for recognizing full protection under Italian Copyright Law. Plaintiff did not indicate the manner in which the photograph was shot or a selection of lights or even specific doses of light and dark tones.

The Court also dwelt on the further infringement of copyright as an overall artistic work excluding the plagiarism of the defendant as it found that the comparison between the two works highlighted certain important differences between the two artistic works.

Do you use Instagram?

Instagram, like many other image-sharing platforms, needs you to grant them the right to display your images, or else they would be violating your copyright by displaying your pictures in the app. Obvious? Maybe, but there’s more to it…


1.    You grant them a License

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels…

Does this mean you still own your pictures? Well, yes, but they can use it whenever they want. At the moment, they only use user pictures in seemingly harmless instances like blog posts and whatnot, so it may be true that the chances of Instagram exploiting user content for profit aren’t that high. That clause, however, is still there. Not to mention that if you’re on Instagram, you already agreed to it.


2.    Not unless your account is set to ‘Private’

…except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. 
Great! But what if you use Instagram to gain followers? 


3.    Reps and warranties…

You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, DO NOT TAKE ANY PICTURE FROM THE INTERNET AND POST IT IN YOUR INSTAGRAM. 

4.    You wanna read the last sentence in that quote again? Ouch.

You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, the people over at Instagram have their backs covered. They won’t waste a penny if you get in trouble. This is why you don’t want to get sued (other than, well, obvious reasons). If the entity that sues you decides to include Instagram in the lawsuit (which they probably will since it was their service you used), it is my understanding from this clause that you could end up paying for your lawyer AND Instagram’s lawyer. That is, in addition to any damages you owe for copyright infringement, should you be found guilty. Ouch? OUCH.

By the way… Instagram is awesome, though, check it out if you haven’t done so already.