The Rome District Court holds liable for copyright infringement a newspaper that published photos taken from a Facebook profile without the author’s consent.

Does a photograph continue to be covered by copyrights after it has been published on Facebook?

The Rome District Court answered this question in decision No. 12076, registered on 1 June 2015, in a dispute concerning the reproduction without the author’s consent of photographs published on a Facebook profile.

Facts in the case

An Italian daily newspaper had published a series of articles on young disco dancers illustrated with photographs obtained from a third party. An underage youth had recognised three of the photographs as pictures he had taken and published on his Facebook profile.

The youth’s parents brought proceedings before the Rome District Court (hereinafter the Court), claiming that their son’s photographs were eligible for protection under Article 2 of Law No 633/41 (Italian copyright law), and that the newspaper’s editor in chief, along with the third party who had supplied the photographs, were liable for copyright infringement and damages.

The editor in chief claimed, in essence, that there was no proof that the youth was the author of the photograph, that publication of photos on Facebook automatically entails the transfer to Facebook of economic rights, and that the third party who had supplied the photographs to the newspaper had not disclosed the source or the author of the photos.

The decision

The Court found that according to Italian law and case law the images at issue qualified as “simple” photographs, as they were documentary photos lacking creative character; therefore they qualified for protection not under Article 2 but under Article 87 of Italian copyright law, which grants a more limited protection to neighbouring rights.

Next, the Court examined Article 2 of Facebooks’ Terms, finding that as far as content covered by intellectual property rights (IP content) is concerned, posting on Facebook does not imply a wholesale transfer of rights.

Under such terms, the user grants Facebook a non-exclusive, transferable license for use of IP content, including photos and videos, on Facebook or networks connected with Facebook.

The license is valid as long as the IP content stays on those networks. Free use of content published by users applies to information only, not to IP content.

This means, in practice, that anyone can access and share IP content on Facebook and other connected networks, but reproduction and circulation of such content elsewhere without the right holder’s consent is not permitted.

The Court found that the publication of a photograph on a social network does not per se prove ownership of IP rights, but can give rise to a presumption of ownership in the absence of any proof of the contrary (such as, in the case of a photograph, an indication on the photo of a third person’s name as author).

Such a presumption reverses the burden of proof, therefore the party publishing the content is deemed to be the right holder and it is up to the party reproducing such content to prove that use was based on a file not covered by IP rights.

In the case at issue, witnesses had testified that the youth had taken the photos and published them on his Facebook profile.

Moreover, the third party who had provided the pictures did not deny taking the images from the youth’s Facebook profile or knowing that the youth was the author.

Lastly, the newspaper’s editor in chief did not show that any effort had been made to ascertain who the author of the photographs was.

The Court held the editor in chief and the provider of the photographs liable for copyright infringement under Italian copyright law, and ordered both to pay moral and material damages in favour of the youth’s parents.