Margherita Manca
Is using photos found online always a copyright violation? Not necessarily. The recent ruling by the Milan Court (No. 5635 of June 3, 2024) established that if a simple photograph does not include the author’s name and the date it was taken, its use does not automatically constitute a violation unless there is evidence of bad faith.
This principle has significant implications for both photographers and photography agencies, which must adopt measures to protect their images, as well as for companies and professionals, who must verify the legal limits before using images found on the web.
When is the use of an image truly illegal? And how can one protect themselves from disputes or compensation claims? In this article, we analyze the court’s decision, the legal framework for online images, and practical tips to avoid legal issues.
The case arose from a dispute between a photography agency specializing in the production and sale of images and a digital services company accused of using several photographs on its website without authorization.
According to the photography agency, the company had published some of its owned images on its portal without a commercial agreement, authorization, or payment. The photos depicted CEOs and managers of major companies and were typically sold to newspapers and businesses for promotional or editorial purposes. The agency argued that the unauthorized use constituted a copyright infringement, justifying a claim for compensation of €25,986.
However, the digital services company denied all accusations, asserting that the images were in the public domain, found online, or provided directly by its clients. Additionally, it pointed out that the photos did not include a watermark, the author’s name, or the date of the shot, essential elements for legal protection. The defense argued that these factors excluded any infringement and that, in any case, once the dispute was raised, the images were immediately removed, demonstrating the company’s good faith in publishing them on its website.
The Court thus faced a recurring question: if a photograph is published online without any reference to its author, can it be freely used? And in the event of a dispute, can good faith and immediate removal make a difference? To answer, the judge reviewed the relevant legal framework and clarified the limits of image protection.
In evaluating the case, the Court had to clarify a fundamental point: not all photographs receive the same legal protection. Italian Copyright Law (ICL) distinguishes between artistic photographs and simple photographs, providing different rules for their protection.
Artistic photographs are considered works of authorship as they possess a creative value that distinguishes them from mere reproductions of reality. These images are fully protected by copyright, similar to literary, musical, or pictorial works (see also “Copyright in Italy: scope and mechanism of protection” di C. Martinez Di Leo). This means they can only be used with the author’s consent, and the photographer (or the commissioner, if rights have been transferred) retains economic control over the work for their lifetime plus an additional 70 years after their death.
Simple photographs, on the other hand, are shots that merely reproduce reality without a significant creative contribution. This category includes professional portraits, event photography, news photos, or industrial shots that serve mainly a documentary purpose. The protection of these images is more limited and is regulated by Articles 87-92 of the Italian Copyright Law (for further details “Determining compensation for the use of “plain photographs” of others – Canella Camaiora” by A. Canella).
A key aspect of simple photograph protection is found in Article 90 ICL, which states that a simple photograph is protected only if it clearly displays credit information, specifically the author’s name and the date of the shot. These elements ensure the work’s recognizability and make the author’s rights enforceable against third parties. If this information is missing, the image can be used by anyone without it automatically constituting a copyright violation.
Beyond the protection period—which for simple photographs is limited to 20 years from the date of the shot, the Court (Milan, No. 5635 of June 3, 2024) had to determine whether the contested photos fell under the category of creative works or, conversely, were images lacking independent artistic value. This distinction was crucial in deciding the case’s outcome.
After analyzing the case, the Milan Court (No. 5635 of June 3, 2024) rejected the photography agency’s compensation request, ruling that the digital services company’s use of the images did not constitute a copyright violation.
The decision was based on three key elements:
One of the ruling’s central aspects concerns the nature of the images. The Court reaffirmed that not all photographs automatically receive full copyright protection, only those that exhibit an added element of originality and creativity.
The contested images depicted managers and CEOs at public events, shots that the Court classified as simple photographs since their purpose was purely documentary and did not express an artistic vision. According to established case law, technical quality or the use of professional equipment alone is insufficient to classify a photograph as a creative work.
Once the Court confirmed that the images were simple photographs, it evaluated whether they met the legal requirements for copyright protection. As established by Article 90 ICL, for a simple photograph to be protected, it must display the author’s name and the date of the shot. In this case, such information was missing, making the images legally unprotected and freely usable by third parties.
Finally, the Court ruled out any fraudulent intent by the digital services company. Even when a simple photograph lacks the author’s name, its use can still constitute copyright infringement if bad faith is proven. This issue has also been explored in the article “Copyright and Photos on the Web: Rules, Protections, and How to Avoid Mistakes” by A. Canella, which clarifies in which cases the use of a photo without credit may still be considered illegal. However, in this case, the photography agency failed to prove that the company knowingly committed a violation. Instead, the company acted in good faith by promptly removing the images after the agency’s complaint.
Given these factors, the Court concluded that no copyright violation had occurred and denied the agency’s request for compensation.
What can this ruling teach photographers and businesses?
The ruling by the Milan Court (No. 5635 of June 3, 2024) clarifies a crucial legal principle: not all photographs published online automatically receive copyright protection. For an image to be protected under the law, it must either qualify as a creative work or, in the case of simple photographs, meet the requirements established by Article 90 ICL.
For photographers, protecting their images is essential. In addition to including their name and the date of the shot, they should implement protective measures such as watermarks, registration on specialized platforms, and clear contractual clauses to regulate image use.
For companies, this ruling demonstrates that not every use of online images is automatically illegal. The absence of credit information may justify the good faith use of a photograph, provided there is no fraud or intentional exploitation. It is therefore crucial to evaluate on a case-by-case basis whether an image is truly protected and whether its use falls within legal limits. A related issue is the aggressive monetization of copyright, where some entities send legal threats for supposed copyright violations—sometimes without valid legal grounds.
When a photograph is used without authorization, it is still possible to assess whether and when to take action to protect one’s rights, considering the type of image and the specific circumstances of its distribution.
This case demonstrates that copyright on online photographs does not apply absolutely but depends on compliance with specific legal requirements. For photographers, simply taking a picture is not enough for it to be automatically protected, while for companies, not everything found on the internet is necessarily free to use.
The solution? Know the rules and avoid mistakes that could lead to legal disputes.
Margherita Manca
