When is photography considered art? Legal criteria for copyright protection in Italy

Italian law distinguishes between 'photographic works of creative character' and 'simple photographs' lacking creativity, with the former enjoying full copyright protection (life + 70 years) and the latter only a 20-year related right. The key criterion is whether the photograph reflects the author's personality through free and creative choices, as established by Italian courts (App. Milano, 20 September 2010) and the EU Court of Justice (C-145/10, 1 January 2011). The article discusses the difficulty judges face in assessing creativity, especially for works like Thomas Ruff's Portraits series, which deliberately adopt an objective, impassive style (Düsseldorf School). Some rulings have considered the photographer's fame and the work's 'artistic merit' (Trib. Roma, 20 December 2006; Pret. Torino, 27 May 1996), though the prevailing view excludes aesthetic merit as a requirement. The author, Federica Minio, an art and IP lawyer, argues that institutional recognition (museums, galleries, auctions) can signal authorship, referencing Denis Curti's statement that galleries affirm a photographer's authorship. Full copyright protection for photography in Italy was established only in 1979 with D.P.R. 19/1979, amending the 1941 Copyright Law.