By Valentina Mazza and Alessandra Tozzi
It is common to spot groups of paparazzi taking pictures at celebrities, fashion icons and influencers on the streets not only during fashion weeks and events, but also in their day-to-day lives. At the same time, it has become increasingly frequent in the United States for paparazzi to file copyright infringement lawsuits against celebrities for sharing those pictures on the Internet, i.e. on social media platforms, without the photographers’ “permission or consent” or without paying them any licence fee.
The latest to be sued by a paparazzi for copyright infringement is no less than Victoria Beckham, but the list includes both celebrities like Jennifer Lopez, Ariana Grande, Gigi and Bella Hadid and brands such as Marc Jacobs and Versace. In general, these cases tended to end with out-of-court settlements that led celebrities to pay steep monetary damages. This created a precedent and many other lawsuits, which are still pending, followed, in the last few months.
While this “paparazzi v. celebrities copyright lawsuit” seems to be a trend limited to the U.S., it never took place in Italy. Therefore, if such a situation would ever happen in our country, which would be a possible outcome? Which legislation would be applied by judges and how would they decide?
First of all, Article 97 of the Italian Copyright Law n. 633/1941 (“ICL”) sets forth the freedom of the press and allows the reproduction and distribution of someone’s pictures without their consent when this is justified by reasons of those people’s fame, especially when such pictures are connected to facts, events or ceremonies in the public interest that also occurred in a public place.
According to Article 88 ICL, the exclusive right to reproduction, distribution and sale belongs to the photographer who took the pictures. They are therefore protected by copyright as long as they present the name of the photographer and the year in which they were taken. Such pictures can neither be freely distributed nor reproduced by third parties. Consequently, celebrities do not own any right on those pictures, despite being their main subject, and cannot use them in any way without having obtained the photographers’ consent or having paid them any licence fee.
Moreover, Article 90, paragraph 2, ICL states that the reproduction of copyrighted pictures is not unlawful and no payment to the copyright owner is due where the information regarding their author and the year in which they were taken are missing. However, this exception does not apply if the photographer is able to prove the bad faith of the person who reproduced the picture.
Having made this clear, what would happen in Italy if celebrities posted this kind of pictures on their social media profile without mentioning its origin and author and without having obtained the necessary authorization?
Some indications of a possible outcome may be found in a decision by the Court of Rome (Trib. Roma, Sez. Speciale Impresa, 01/06/2015, n. 12076). In that case, the pictures posted by the photographer on its Facebook profile were used in a newspaper article without the photographer’s consent. In particular, the Court noted that Article 90, paragraph 2, ICL was conceived having in mind printed negatives of printed photographs and now needs to be updated and adapted to the evolutions occurred in the digital environment.
In fact, it highlighted that the purpose of the provision was to allow the reproduction of pictures where the people who reproduced them could not know, through their ordinary diligence, the name of the rights owners and ask for their authorization. In this context, according to the Court, digital watermarks on a picture should be deemed an appropriate tool to identify the two elements indicated, as also confirmed in the Directive 2001/10/CE .
Then, with specific reference to Facebook, the Court of Rome found that the reproduction of a picture is unlawful when, even if all the necessary information is missing, such picture is published on a website (i.e. a social media profile) which can be clearly linked to its author or when the author’s name and the date are clearly indicated next to the picture on a Facebook page.
As a general rule, the Court stated that the publication of a picture on a Facebook page cannot be considered as evidence of the ownership rights on it. However, where other indications are missing, that could be considered as a “serious, precise and consistent presumption” of the copyright ownership on such picture of the owner of the Facebook page in which the picture is published. Therefore, this leads to the reversal of the burden of proof, requiring the person who reproduces the picture to prove that it was not covered by IP rights belonging to the owner of the internet page from where the picture was downloaded.
As mentioned, although paparazzi never brought a copyright lawsuit against celebrities in Italy, Italian courts are showing increasing attention towards social media and – after the fight against false advertising in the digital marketing – this could become another hot topic in the fashion system.
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