Accessing a pay database to download images to be used for business does not automatically give the right of using those images even after the end of the subscription.
The Court of Milan has decided that facing the case of a publishing house opposing the payment order issued in favor of the holder of the database which complained about the non-payment for the rights of use of some images after the interruption of the subscription.
The publishing house had for some years a contract non set down in writing with a service supplier allowing the access to the a database and the use of its images for publications.
The subscription ended in 2014 but newspapers kept showing images owned by the photographic firm and in particular images that, according to the publishing house, were downloaded during the subscription. The defense was based on the ground that after the end of the contract no other images were downloaded and that the fees for the images used had been already paid.
But the Court of Milan did not share the same opinion. Even though
“for what concerns the objection related to the number of image arose because they were ‘published during the subscription’, it is important to clarify that these images were taken from the database of the applicant by the opponent during the contractual relation but then they were reproduced and republished after the end of the contractual relation”,
with judgment no. 12349/2017 of December 6, 2017 the Judges maintained that
“…the prior extraction and use of the images during the contractual relation is not sufficient to exclude the unlawfulness of their following use without the proof of a valid title of assignment of the rights of reproduction”.
According to the Court, the records showed the temporary nature of the right given which could not be qualified neither as an assignment nor as a permanent licence of the rights related to the images.
The Court also decided that
“generally, the exhaustion of the right does not work in reference to rights of use other than the exclusive right of distribution (art. 17 LA) and even in that hypothesis, foreseen by the law, it is to exclude that the exhaustion occurs for copies legitimately realized ‘downloading’ works available online (art. 17.3 LA)”
Therefore, in this case the use of images could be considered lawful only for the duration of the contract between the parties. At its expiration, lacking any proof of a permanent licence for the rights of use, the chance of using the images, even if downloaded before, was over.
Cases alike are very frequent in the procedure and the dispute depends on the absence of a contract. As a result, the parties believe in good faith in their arguments. One should always keep in mind that setting down a relation in write is a good rule to not run into unpleasant litigations.