Upon appeal of an interim injunction, the intellectual property division of the Court of Turin delivered an unprecedented ruling that the use of photos, originally licensed only for editorial purposes to online daily newspapers and viewed by users even after the contractually agreed time limit in online archives, could be regarded as unlawful commercial exploitation. This may apply if those photos are associated with advertising banners or other broadcast elements that are regularly updated, e.g. up-to-date news.
Until this ruling, it was widespread practice that the reporting photos licenced for a limited period, unless otherwise specified by the contract, were characterized as “acquired” by the licensee as a file record. Thus, there was no restriction on their use once the contract has expired, and they could be stored in the archives of the website, that is to say within the files of their original publication.
In contradiction, the Court of Turin declared that maintaining the photo on the web page where it was originally published is only legitimate if that page is not updated or changed in any way.
At the heart of the matter is a dispute between LaPresse S.p.A., one of the most famous photo journalistic agencies and media companies in the market, and Poligrafici Editoriale S.p.A., one of the biggest publishing groups in Italy, which includes, among others, the newspapers La Nazione, Il Giorno, Il Resto del Carlino and their respective websites. The IP Court of Turin, which was assigned to rule on the dispute and was convinced by LaPresse’s attorney’s argument, decided that Poligrafici’s use of the photos was “abusive commercial exploitation” because users were not only presented with the photographic content they requested, but also with advertisements that are a source of income for the website.
The ruling, confirming the first instance decision, was affirmed by the Court of Turin following Poligrafici’s appeal. It not only forces the editorial group Poligrafici to remove AP/LaPresse’s photos from its websites, but it also fixes a penalty of € 1,000 for each violation and for each day of delay in complying with the order, from the tenth day following its publication.