Online Publications and Use of Works

Division G of the National Court of Appeals in Civil Matters upheld the judgment ordering Arte Grafico Editorial Argentino SA (AGEA), publisher of Ñ magazine and the newspaper Clarin, to pay damages for the unauthorized publication of a photograph of the philosopher Catherine Malabou, taken by photographer Guillaume Emmanuel Verge, who carries out his artistic activity under the pseudonym Guillaume Darribau. The ruling included compensation for economic and moral damages, as well as the obligation to remove the publications and publish and disseminate the scope of the ruling.

On appeal, the defendant challenged the plaintiff’s standing, arguing that it had not been proven that Guillaume Verge and Guillaume Darribau were the same person. The Court rejected this argument and concluded that the plaintiff had sufficiently demonstrated that Guillaume Darribau was his artistic pseudonym. In this regard, it recalled that well-known pseudonyms receive the same legal protection as a name and are expressly protected under Argentine law, pursuant to article 72 of the Argentine Civil and Commercial Code.

Regarding the use of the photograph, AGEA acknowledged that it had obtained the image from the Internet and argued that its use had been unintentional. However, the Court emphasized that the authorship of the photograph appeared on the website from which it had been taken and that a professional publishing company could not claim ignorance of that fact. Accordingly, it held that the defendant had failed to comply with the diligence required when reproducing third-party content.

The Court also took the opportunity to reiterate a fundamental principle of copyright law: protection arises upon the creation of the work and does not depend on registration. In accordance with Law 11723 and the applicable international treaties, it noted that registration is not a requirement for the existence or exercise of the author’s rights.

Likewise, the Court upheld the compensation awarded for economic damages, stressing that such compensation must reflect the remuneration the author would have received if the corresponding authorization had been requested. According to the Court, a different solution could create incentives to use third-party works without consent rather than negotiating a license for their use.

In addition, the Court confirmed the award of moral damages arising from the infringement of the author’s moral rights, particularly his right of paternity over the work and to recognition of his authorship. It further recalled that these rights remain autonomous from economic rights and deserve protection, even when the economic exploitation of the work has been authorized or assigned.

Based on these arguments, the Court fully upheld the appealed ruling, reaffirming that the mere availability of a work on the Internet does not make it free to use. This ruling serves as a further reminder that those who reproduce content obtained online must verify its authorship and secure the corresponding authorizations, since unauthorized use may constitute an infringement of copyright, including both economic and moral rights, and may give rise to the corresponding legal consequences.