La firma de moda italiana ANTONIO MARRAS, S.R.L., ha sido condenada por el tribunal de primera instancia Milán al pago de, entre otros, una indemnización de 25.000 €, más intereses y costas por el uso no autorizado por su autor de una fotografía de un lobo en sus diseños como publicaba hace unos días la profesora y colega Eleonora ROSATI.
En la sentencia se dirimía-en resumen-si la fotografía de un lobo aullando plasmada en una prenda de la firma que anunciaba su colección otoño-invierno 2014-2015 era una obra original en el sentido de Derecho de autor (y, por tanto, estaba protegida), con la consiguiente necesidad de la preceptiva autorización del autor para su uso o, si por el contrario, no era más que una mera fotografía («fotografía sempbice») o incluso no podía calificarse de obra original y carecía de tutela.
La fotografía se había registrado por su titular en la Oficina de Propiedad Intelectual de EE.UU. (§ 2.2. pág., 9) , se había publicado, nada mas y nada menos, que en las revistas «National Geographic» y «Nikon Learn&Explore» y es uno de los primeros resultados del motor de búsqueda que Google si se teclea «holwing wolf» o «lupo ululante» (§3.1 pag., 11). El tribunal, remitiéndose a la jurisprudencia del TJUE establecida en Painer c. Axel Springer et al. (C-145/10), analiza si la personalidad del autor queda plasmada en la fotografía a los efectos de determinar si se trata de una verdadera obra original, lo que afirma concurre en el presente caso en base a las decisiones libres tomadas por éste en la realización de la fotografía (§3.1 pág. 10).
De los criterios que analiza el tribunal para apreciar la concurrencia de la libertad creativa del autor que queda reflejada en su impronta personal en la obra, el tribunal valora que el autor (i) haya decidido representarlo en primer plano; (ii) la postura aullando; (iii) el uso de la técnica del claroscuro; (iv) el contraste del pelo del animal; o (v) el ambiente nevoso con los copos alrededor. Por lo que «no es una mera representación del animal» (§3.1 pág. 10 in fine).
Por tanto, el tribunal concluye que la fotografía debe calificarse como «obra protegida» en el sentido de los arts. 2 al 7 de la ley de propiedad intelectual italiana (§3.1 pág., 11). En este sentido, recuerda que el hecho de que una fotografía sea de acceso público no implica que se encuentren en dominio público y que, de esta manera, se pueda usar sin autorización del autor (§4.1 pág., 12). Y condena a la firma de moda al pago de 25.000 €, más los intereses y las costas del proceso por infracción de derechos de autor.
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