According to a June 1 decision by the Court of Rome, the uploading of photos on one’s own Facebook wall using the ‘public’ setting does not amount to granting a copyright licence to third parties. Therefore, whoever downloads photos marked ‘public’ from a Facebook wall and uses them without authorisation infringes copyright and may be liable for damages.
It is common practice for journalists to use social networks to gather photos for publication in newspapers. This activity was based on the premise that online photos are not protected by copyright since they were uploaded to the internet, a public domain. The court’s decision related to a young man who uploaded photos onto his own Facebook wall and subsequently found some of his photos published in a national newspaper without reference to him and without his authorisation.
The court first examined the issue of copyright ownership. The newspaper argued that there was no evidence of the young man’s ‘ownership’ because there was no mention of his name on the photos. The newspaper alleged that publishing photos on someone’s own Facebook wall would not be sufficient to prove ownership. The court found that, even though uploading photos to your own wall on social networks is not per se evidence of ownership, in the absence of evidence to the contrary such uploading may be considered as an assumption of ownership in favour of the owner of the wall, in accordance with the principles set out in article 2729 of the Civil Code.
The second issue that the court examined related to the suitable protection for the photos, ie, whether such photos were protected by copyright or by ‘neighbouring’ rights, which are more limited than copyright. In order to decide which protection should apply the court had to determine whether the photos were ‘creative’, an expression of the author’s personal vision and capable of arousing emotions going beyond the depicted image, or ‘simple’, mere representations of reality. Only ‘creative’ photos are protected by copyright; ‘simple’ photos are protected by neighbouring rights. In the case at issue, the court decided that the photos were not sufficiently creative and therefore were protected by neighbouring rights.
"Copying a photo may be considered unlawful even when there is no mention of the author’s name or the date of the photo."
The third issue related to the defendant’s claim that the young man did not have locus standi because he had allegedly transferred copyright to Facebook when uploading the photos on his wall. The court, based on an overall interpretation of Facebook’s statement of rights and responsibilities (SRR), found that when uploading photos on Facebook the user grants Facebook only a non-exclusive and transferable licence, which is valid while the photo is on the social network, but does not totally transfer copyright.
Moreover, according to the court, the possibility for everyone to use content uploaded on the ‘public’ setting pursuant to article 2(4) of the SRR does not amount to a general licence of use for the benefit of any third party that accesses Facebook. Indeed, the ‘public’ setting allows anyone to see and share content on Facebook or other authorised social networks, but it does not allow for external copying and disseminating of such content without the consent of the author.
The fourth issue regarded whether it is lawful to copy online photos when the author’s name and the date of photo are not provided on the photo itself, with a reference to this being a requirement for determining whether protection is granted as a ‘simple’ photo. The court gave an innovative interpretation on the law on this point. It found that copying a photo may be considered unlawful even when there is no mention of the author’s name or the date of the photo, provided that the photo has been uploaded on a webpage connected to the photographer or the abovementioned data are positioned near the photo (such as on a Facebook wall).
In conclusion, using photos found on social networks—including those in the public domain—may amount to copyright infringement even if such photos have a ‘public’ setting. Henceforth social network users and in particular journalists will need to be very careful when considering whether to use photographs found online.
Julia Holden is a partner at Trevisan & Cuonzo. She can be contacted at: jholden@trevisancuonzo.com
Andrea Ghirardelli is a trainee lawyer at Trevisan & Cuonzo. He can be contacted at: aghirardelli@trevisancuonzo.com
SRR, Julia Holden, Andrea Ghirardelli , Trevisan & Cuonzo, copyright,
