Author's Right, Copyright and Free Licenses for Culture on the Web/Types of Content/Photographs

16. How many kinds of photographs exist?
Photography law finds its main source in the Berne Convention (which was modified, to include photographs, in 1948) which provides the “minimal” protection (in the sense of essential) of literary and artistic works and states that photographic works and other similar works must be considered artistic works. The Convention does not make a distinction between photographs as intellectual creations and photographs as mere representations of reality without requirements of originality and creativity. The choice whether to distinguish between different kinds of images has been left to the internal laws of each member state. In EU law, the possibility to provide for the protection to other kinds of images – in addition to the photographic ones – has also been left to the internal regulations of each member state by Directive 2006/116 (Protection of copyrights and certain related rights), which specified that all photographs that are original, ie. the result of the author’s intellectual creation, enjoy protection, without considering any other criteria besides “originality”.

Certain jurisdictions define various kinds of photographs:
 * 1) “Photographic works,” which have a creative “element” and enjoy the strongest protection under Copyright Law;
 * 2) “Simple photographs,” which are generally protected for a twenty year term (from the date of the production) and are images of “people or aspects, elements or facts of natural and social life, obtained by photographic or equivalent process”, and
 * 3) “Photographic reproductions” (i.e. “documentary” photos), which are mainly reproductions of documents, material items, technical drawings; they are protected under general principles of law (such as those of private law, in Civil law jurisdictions) rather than the Copyright Law.


 * References:

17. Which photographs are protected by copyright?
In general, photographic works enjoy full protection as artworks, the law grants to the author both moral and economic rights. In some jurisdictions, simple photographs (photographs without the so-called creative contribution, the personal imprint of the author, and which are mere reproductions) are protected under a related rights regime ; the law recognizes author exclusive rights of economic use, such as the right of reproduction, dissemination, sale, rights that allow the author to market, publish, and to display in exhibitions. With regards to reproductions, according to Directive 2019/790 (art. 14), Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from the act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from the act of reproduction is original, in the sense that it is the author’s own intellectual creation. In other words, “faithful” (non-creative) photographic reproductions works of visual art that are in the public domain through expiration of the term are not protectable by copyright.


 * Reference:

18. Does the law fix a minimum level of creativity in order to grant protection?
In order for a work to be protected at the European level, pursuant to Directive 2001/29 EC of 22 May 2001 (Infosoc Directive), it must be original, i.e. it shall be an intellectual creation of the author and shall be the expression of such creation. The Court of Justice has specified that copyright can only be applied with reference to original works. Emphasis is placed on the need to identify the personal touch of the photographer in the creation of the photograph and regardless of the artistic merit. In some jurisdictions, intellectual works of creative nature are protected, and there is no minimum level of creativity required. The works shall be the result of a creative activity and the photographer shall not have limited himself to reproduce reality, it is important that the author gives his own interpretation. Creativity is the author’s personal and individual expression. Therefore, the existence of a creative act, albeit minimal, is sufficient and the photographic work must be the result of a qualified activity of intellectual creation. The characteristics of creativity must be evaluated from time to time, the interpreter must consider both the choice and preparation of the photographer and the subjective element that is expressed in his representation of reality.


 * References:

19. Which are the rights of use connected to photographic works and to simple photos? How can they be transferred?
The rights of use generally referred to photographic works are:
 * 1) the right to publish it and to use it economically;
 * 2) the right of reproduction or multiplication in copies;
 * 3) the right of communication to the public;
 * 4) the right of distribution (i.e. marketing or in general of making available to the public by any means, whether for payment of a consideration or for free);
 * 5) the right to rent (assignment of use to any third parties) and to lend (assignment by institutions open to the public).

The above mentioned rights are transferable; in some jurisdictions the transfer requires a written contract and in its absence, it will be impossible to give evidence of the transfer.

In some jurisdictions, “simple” (non-original) photos are granted related rights, such as the exclusive right of reproduction, dissemination and sale. Such rights are transferable with a written contract or through the transfer of the negative or similar means of reproduction of the photograph (and for digital photographs, the “file”). The transfer of the negative may give rise to the presumption that a transfer of economic rights occurred, unless there is an agreement to the contrary.

To be noted that the transfer of the reproduction rights does not cause the transfer of the moral right of the photographer to be recognized as the author (right of attribution or paternity), which is a personal right and is generally not waivable.

20. Is one allowed to do a collage of photographs?
A collage implies the use/elaboration of someone else’s works or part of them. Therefore, for a collage, it will be necessary to ask for the authorization of the author (or rights holder) and to use the works within the limits of the rights of use which had been granted and to comply with the moral rights of the authors of the works included in the collage.

The consent of the author of the original works are necessary, as each one of them has exclusive right to use his work, or any derivative work (a collage could be derivative). The collage shall not cause prejudice to the original work. The author may oppose any deformation, cut or other modification and any act which damages the work, if it causes a prejudice to his honour and his reputation. The author may consent to a reproduction of his work, also partially, in derogation of his moral rights.

21. Is one allowed to modify an image without author’s consent?
The author has the exclusive right to modify the image, to combine it with another work, including disassembling the image’s elements and to transform it. The consent of the author is necessary if a third party wishes to modify it, save for some circumstances such as satire and parody. To qualify a work as parody, the image must evoke an existing work, while being noticeably different from it and constitute an expression of humour and mockery.


 * References:

22. Is the owner/custodian of an artwork also the holder of the author’s rights on the work, i.e. for photographic reproductions?
No, generally the custodian of the work is the owner and/or custodian, depending on the facts, of the work but he is not the rights holder, unless otherwise determined by contract. Therefore, it is necessary to specify in the agreement signed with the rights holder which rights are transferred to the purchaser and/or custodian (the sole right of custody, the right of custody and of exhibition, the right of reproduction, etc.).

23. Are there any cases of free use?
In some situations it is possible to reproduce a work without the consent of the author, whenever there is a general superior interest, social one, cultural and information one, and they prevail over the author’s right. The same principle applies to photographic works (right of information and news, the use of works for public safety reasons, or reproductions for personal use) and to simple photos (for education purposes, reproduction in scientific and educational works, or of public interest). The author has the right to a fair compensation. The catalogue of an exhibition is not a free use.


 * Reference:

24. Can one freely display the photographs?
At the European level, the need to be able to exhibit and promote artworks, for example part of a museum collection, is widely recognized among the exceptions and limitations provided by the author’s rights laws of he European countries, also in line with the provisions of Directive 2001/29/EC, art. 5(3)(j) which allows member States to provide for exceptions and limitations in order to advertise a public exhibition or sale of works, to promote the event, excluding any other commercial uses. The right to display – in favour of the owner/custodian – is not regulated in a harmonized manner in the various countries, as it is a right considered differently in the various legal systems: in the absence of a specific provision in such sense, cultural entities have become aware of the importance of negotiating the transfer of such rights, where possible, when they acquire such artworks.


 * Reference:

25. Who is the rights holder for the photographs commissioned and for those created by an employee of the museum?
Usually, for simple photos obtained during the performance of job tasks pursuant to a labour agreement, within the limits of the agreement itself, the exclusive right is held by the employer. The same principle applies when, in the event of commissioned photos (for example for photos done by a freelance photographer), and unless otherwise agreed, the photographed objects are owned/ or in custody by the commissioning party: if they are used commercially, a fair consideration is due to the photographer, but rights remain with the commissioning party owner of the objects.

26. Which technological measures can be used to protect digital photos?
Digital images travel, are shared at a great speed; often they are copied, downloaded, modified, even without the consent of the rights holder. To overcome these risks, there are technological measures, both to identify the right holder connected to the image and to prevent access or reproduction. The standard system is encryption which makes a text indecipherable unless the secret encrypted code, necessary to reveal the content, is known. One of the most common systems is the so-called digital watermark, which consists in the insertion, within the artwork, of a set of bits that modify the watermark of the digital code of the artwork. The digital logo may be visible to the eye or may not appear if not through a digital reading of the code of the work. There are also new software systems which, by providing a data registration service for the right holder, provide an online control service through specific programs aimed at finding the images used without the consent of the right-holders.

The DSM directive provides at article 7(2) that Member States have to ensure that users can access and use TPM-protected content according to some of the new mandatory exceptions. This also applies to content acquired by contract and made available across internet. The users have the right to require the right-holder to provide the technical means necessary to benefit from the exceptions and not to remove the TPMs by themselves. The exceptions considered are the one related to text and data mining for research purposes (art. 3), text and data mining in general (art. 4), educational one (art. 5), preservation (art. 6).


 * Reference:

27. Can photographs be considered cultural goods?
Yes, according to certain jurisdictions, such as the Italian one, photographs that meet the requirements of rarity and value can fall into the category of cultural heritage and as such are subject to the provision of the Code of Cultural Heritage. Both photographic works and simple photos can be protected by the cultural heritage provisions; the latter must be rare or have a valuable historical interest and they must be works by dead authors or whose creations date back over fifty years. For more recent photographs or photographs by living artists, no cultural heritage limits can apply. There are special categories of cultural heritage goods:
 * 1) photographs with related negatives and matrices, the production of which dates back over 25 years;
 * 2) collections of photographs, if they are of exceptional interest upon declaration of cultural interest;
 * 3) archives, if of particularly relevant historical interest and subject too declaration of cultural interest.

28. Are photographs considered to be cultural goods under specific controls and protections?
Cultural heritage photographs are subject to the obligation of conservation which must be carried out through a coherent, coordinated and planned activity of study, prevention, maintenance and restoration. The photographs cannot be moved from the place of conservation without the authorization of the relevant ministry, they cannot be used in contradiction to their historical or artistic character or in such a way that their conservation or integrity could be prejudiced. They can be subject to compulsory custody in order to guarantee their safety and prevent their deterioration. A right of inspection is granted to verify the state of conservation and custody.

29. Can they be freely transferred and can they be freely circulated?
No, as they are assets which may fall within the cultural property of the state; therefore, they may circulate within the limits and in compliance with specific provisions. In certain jurisdictions, if they are part of collections of museums, art galleries, galleries and libraries or archives, they cannot be transferred. The same principle may apply to images of living artists or which date more than fifty years if the works belong to state collections. The cultural heritage photographs that do not belong to the state or entities indicated can be transferred and the transfer document must be reported to the ministry, as the State may exercise a purchase pre-emption right. Loans for exhibitions and exhibitions must be authorised by the ministry even in the case of international circulation, for which a temporary circulation certificate is required.