The Supreme Court takes stock of the concept of parody in our legal system

Laura Bussoli - Senior Associate

Eleonora Carletti - Junior Associate

By Dec. 30, 2022, in ruling No. 38165, the Supreme Court ruled, among other things, on the legitimacy of an advertisement starring the fictional character Zorro. In this context, the Supreme Court addressed some issues particularly relevant to copyright, such as the protection of fictional characters regardless of the work in which they appear as well as the protection, under certain conditions and within certain limits, of the parody work in our legal system. The issue on which the Supreme Court ruled starts from the broadcasting of an advertising campaign for a well-known mineral water ("Brio Blu") featuring as its protagonist the famous character of Zorro, created by the writer Johnston McCulley in 1919 and on which the U.S. company Zorro Productions Inc. claims copyrights, in addition to other Intellectual Property rights that has been claimed.

In the “infringing” advertising spot, Zorro was used, in a comic and satirical key, in order to advertise a product (water). As a result of this use of the Zorro character, which allegedly took place without authorization, the American company sued the mineral water company, claiming infringement of its copyright on the Zorro character, as well as a long series of breaches related specifically to the protection of its intellectual property rights.

After the first instance, in which the Court of Rome condemned the defendant company to indemnify Zorro production Inc. for the infringement of its copyright, and the second instance, while the Court of Appeal, had denied such damages, on the basis that - according to the judges – the Zorro character is now in the public domain (and, therefore, there would be no valid copyright to protect), the Supreme Court fixed some very important points on copyright, and in particular on the parodistic use of a work (or character) on which - evidently - copyrights are still valid and existing.

First of all, therefore, the Supreme Court excludes the fall into the public domain of copyrights on the work and on the character of Zorro, deeming applicable the Article 25 of our copyright law (L. 633/1941 “LDA”), which provides the copyright protection until the seventieth year after the author’s death.

Secondly, and this is the main issue of this decision, the Court pointed out the content and limits of parody in our legal system. Since our legal system does not expressly provide among the so-called “exceptions” to the copyright protection, the hypothesis of “parody”, according to the Supreme Court the latter finds, instead, full recognition in our legal system pursuant to art. 70 LDA, “as an expression of thought”: according to the Supreme Court in fact, “the lawfulness of the parody of the work or character created by other people finds its basis in the free use referred to in the above mentioned Art. 70, paragraph 1, L. No. 633/1942”. In fact, this article allows the summary, citation or reproduction of extracts or parts of works and their communication to the public, “made for critical use or discussion, within the limits justified by such purposes and as long as they do not constitute competition to the economic use of the work.”

According to the Supreme Court in the very first place, for the purpose of the recognition of the lawfulness of parody, it is not required that the parody acts as a “creative elaboration” or original of the original work in accordance with Article 4 LDA, since the association to the main work is a congenital and fundamental element of the parody itself. Moreover, if this were the case, the Supreme Court points out, it would be necessary from time to time to obtain the authorization of the author of the original work, who would hardly consent to the “comic misrepresentation of it.”

Moreover, and this is the second very important point of this decision, the reference contained in Article 70 LDA “provided that they do not constitute competition to the economic use of the work” by no means should be interpreted, as the Rome Court of Appeals erroneously did, in the sense of "commercial or profit-making purpose."

Therefore, uses allowed by Article 70 LDA - including parody – now seem to be not excluded if there is a profit or commercial purpose the author of the parody may pursue, even incidentally: they are excluded only in the case of a competitive relationship between the original work and the parody itself.

In conclusion, according to the Supreme Court, the lawfulness of parody reposes, in addition to the free expression of thought, both in the functionality of it with respect to its parodistic and satirical purpose (i.e., it must not have purposes and contents that are merely denigrating and depreciating of the main work or of one of its characters) and in the absence of a competition relationship with the protected work that would instead make the parody descend from an unlawful exploitation of the work itself.

This important interpretation of parody in our legal system fits perfectly into the interpretative groove of the Court of Justice, which argued its conclusion by stating that it is necessary to make a balance between opposing interests, namely, from one hand the exclusive rights of reproduction and communication to the public of the work, and on the other hand, the user’s freedom of expression of a protected work, which benefits of the parody exception (EU Court of Justice, C-201/13, cited above, 34).

Italian version

Intellectual Property

Copyright

The commercial success of a fashion item does not automatically entail recognition of copyright protection (in the absence of proof of creativity and artistic value)

Gaia Bellomo - Associate

Legal protection of fashion designers’ creations counts several means: from unfair competition to design protection, shape marks, to the protection offered by copyright law (L. No. 633/1941): these instruments offer different kinds of protection and can be used only if specific requirements are met, which must always prooved.

It is common in this field seeing fashion labels trying to "dress up" their products with a variety of intellectual property titles, registering them, for example, as shape marks or as industrial design, in order to increase the level of protection against possible imitations.

However, although protection by registration of intellectual property rights in the fashion industry is particularly widespread, the temporary nature of the rights conferred by registration may be an obstacle to the protectability of garments or accessories when their commercial success is particularly long-lasting: in these cases, in order to have access to protection extended in time and which goes beyond the formalities required for registration, it is necessary to prove not only the particular liking of the public, but also the creativity and artistic value of the product to aim to copyright protection.

An emblematic case of the possible coexistence of several levels of protection for fashion items and of the difficulties connected to the proof of the creativity and artistic value of a product aiming to be considered as copyrighetd is the one recently dealt with by the Court of Milan.

The case concerned the marketing of bags imitating the famous "Le Pliage" bag by Longchamp, protected by two European Union three-dimensional trademark registrations claiming its peculiar trapezoidal shape, and also characterised by the combination of further original elements, such as the rounded flap, the tubular handles and the contrast in colour and materials between the nylon and leather elements.

The plaintiff claimed that the "Le Pliage" bag model was created in 1993 and has been still marketed worldwide through more than 1,500 sales outlets and also online and requested protection against imitations, invoking not only the protection provided for on the basis of three-dimensional trade mark registrations (pursuant to articles 2 and 20 C.P.I. and art.9 EU Reg. no. 2017/1001), but also the violation of the rights of the author and of the principles protecting fair competition on the market (art. 2598 c.c.).

The Court first of all recognised the infringement of the plaintiff's three-dimensional European trademarks insofar as it was established not only their distinctive capacity due to the manner of use and presentation of the trademark itself and the information and suggestions conveyed through advertising and the perception that the shape determines on the consumer public, but also the taking over, by the imitative bags, of all the distinctive elements of the "Le Pliage" model.

With regard to the invoked copyright protection, referring to its own case law on this point, the judgment ruled that it was not possible to identify in this case the actual existence of the artistic character necessary for the form of the bag to enjoy such protection.

The Judges found that, apart from the undeniable commercial success gained on the market, the plaintiff had not enclosed the elements that should have confirmed the presence of an artistic value in the creation of the external appearance of the bag model in question.

In other words, there was no evidence at all of the requirements of creativity and artistic value which presuppose the applicability of Art. 2.10 of the Copyright Act.

As is well known, artistic value can be inferred from a series of objective parameters, such as the recognition by cultural and institutional circles of the existence of aesthetic and artistic qualities, exposure in exhibitions or museums, publication in specialist magazines, the awarding of prizes, the acquisition of a market value so high as to transcend that linked solely to its functionality or the creation by a well-known artist and, in the absence of evidence, it is not possible to have access to the protection provided for by the law on copyright.

Italian version

• Intellectual Property

• Fashion Law

Can an anonymous work be protected as a trademark?

Gianpaolo Todisco

According to a recent decision of the EUIPO (Intellectual Property Office of the European Union) it would seem not to be the case: the rejection by the Office of the request for trademark cancellation made by the Full Color Black (manufacturer of greeting cards).

This all started when, in 2014, Banksy decided to register his famous work "The Flower Thrower" as a trademark with the European Union; it is a mural made in Jerusalem in 2005 and still wants to remember how wars and battles should be fought with the flower of hope and abandon violence. In accordance with his line of action characterized by irony, provocation and marketing strategies, the famous British writer has registered the work as a trademark to protect any products distinguished by the famous work.

Howeverthe British greeting card company Full Colour Black, sued by Banksy for counterfeiting, claimed that the trademark should be cancelled because it never intended to use it on any products. This was the argument used by Full Color Black's attorney to exonerate her from the 2018 copyright infringement charge. Well, with the decision of 14 September 2020 the EUIPO rejected the artist's request because, according to the Community Trademark Regulation, in order to claim its right on those images it is necessary to leave the anonymity.

To renounce anonymity, however, would damage the aura of mystery that surrounds him. Banksy has the opportunity to appeal within two months of the ruling, but the legal discipline on the matter makes it clear that the Writer risks losing the protectability of all other works if he chooses not to disclose himself.

Photography and fashion. Clovers obtains a favorable ruling from the Court of Milan on the unauthorized use of a photograph on a fashion collection.

Gianpaolo Todisco – Partner

Laura Bussoli - Associate

One of the gaments of the collection.

Last week the Court of Milan sentenced the company founded by stylist Antonio Marras to pay damages to the American photographer, Daniel J. Cox, for the unauthorized reproduction of a photograph of the latter on clothing.

Daniel J Cox is one of the most successful nature photographers and author of several covers of National Geographic magazine and he know as being the author of a monographic book dedicated to wolves.

The controversy arose when Fashion designer Antonio Marras used this image without the author's consent to develop its fashion collection.

The image was reproduced on a series of women's garments and presented during the woman’s 2014-2015 F/W fashion show in Milan and the collection was distributed and marketed worldwide.

After the parties unsuccessfully completed negotiations aimed at settling the case, the photographer invoked injunctive relief against unauthorized use of the image as well as compensation for damages quantified at the request of the same in the so-called price of consent.

The Court ruled that the image printed on several garments created by Marras coincided with the photograph shot by the plaintiff and met the requirements of the artistic and creative character necessary to access the "enhanced" protection provided by the Copyright Law.

Indeed, Italian copyright law grants photographs a dual level of protection, distinguishing between photographic works (or artistic photographs) and simple photographs.

The orginal photograph. Copyright Daniel J. Cox. - Natural Exposures. All rights reserved.

The difference - which is not always easy in practice - is traced by art. 87 of Italian Copyright Law which define as simple photographs "images of people or aspects, elements or facts of natural and social life, obtained by photographic or similar process, including reproductions of works of figurative art and film stills" and recognize the same protection as neighboring right.

 Conversely, there is no explicit legislative definition of an artistic photographic work  in the Copyright Law and this is left to a “case by case” "practical" evaluation by judges on the basis of a series of indexes.

Artistic photographs are treated like other artistic works have access full protection (up to 70 after the death of their author), whereas simple photographs, on the other hand, enjoy limited protection (20 years from the date of photograph’s production) and the photographer is only entitled to fair compensation in case of unlawful use.

A first and fundamental point of the decision rendered in the Cox/Marras case, concerns the recognition of the artistic value of photography: in the Court’s opinion the artistic value lies "in the creative capacity of the author, i.e. in his personal imprint, in the choice of the subject to be portrayed as well as in the moment of realization and reworking of the shot, such as to arouse suggestions that transcend the common aspect of the reality represented.

The choice to portray the animal in its natural environment and in adverse climatic conditions makes the shot "the result of study and careful photographic analysis by the author" and contributes to the recognition of its artistic value according to the Court.

It is also the technique that comes in this case in relief in order to correctly frame the image within the protected and protectable photographic works: "a wise blurring of the surrounding environment, thus enhancing the expression of the represented subject ... and evoking, in this way, peculiar suggestions in the observer such as to go beyond the mere graphic representation of the animal (...) "a wise use of chiaroscuro and the use, with creative purposes, of light ". Last, the specific authoritative recognition of the artist in the United States and the publishing of the photograph in a monographic work also helped the Court understand the nature of the work.

Therefore, once the artistic nature of the work has been ascertained, the use by the defendant company for commercial purposes of the photograph, by placing it on an item of clothing included in the women's collection, in the absence of any authorization from the author, "constitutes an open violation of the author's right to compensation for damages".

It is interesting to note that the Court of Milan rejected the defendant's objections to the alleged lawfulness of the use of the photograph, since the same can be found on the Google search engine.

The Court found that - "the mere availability on the web of a photograph certainly does not constitute a presumption of absence of authoritative rights, on the contrary, the burden of ascertaining whether or not third parties have rights".

In conclusion, the Court stated that the work of the photographer Daniel J. Cox should be considered to be protected by copyright law, as a creative work in the particular field of photography, ordering the defendants, jointly and severally, to pay damages to the applicant and ordering the publication of the operative part of the judgment by and at the expense of the defendants in the periodical Vanity Fair.

Through this judgment, the Court of Milan has analyzed several legal issues which are constantly being debated experts in the world of intellectual property.

FERRARI 250 GTO IS A WORK OF ART PROTECTED BY COPYRIGHT .

The Court of Bologna, Section specialized in business matters, has recently added the protection of copyright to the model of Ferrari, perhaps the best known and most appreciated ever: the 250 GTO.

The number, 250, stands for the displacement of each cylinder in cubic centimetres of the V12 3000 cc engine displacement. GTO stands for "Gran Turismo Omologata". This acronym will not be used for several years until the presentation in 1984 of the Ferrari 288 GTO.

According to the Court, "the personalization of the lines and aesthetic elements have made the Ferrari 250GTO a unique example of its kind, a true automotive icon". "Its artistic value has found objective and generalized recognition in numerous awards and official certificates", in "copious publications" and in the "artistic" reproduction on coins and in the form of "sculptures", periodically exhibited in museums.

The Court has thus issued an order prohibiting the defendant to reproduce the form of the 250 GTO in rendering and in car models.

The resistant company was in fact ready to launch on the market a dozen replicas of the 250 GTO, at a price of about 1 million euros each, which reproduced the legendary model of the '60s.

THE DIFFERENCE BETWEEN SIMPLE AND ARTISTIC PHOTOGRAPHY

Recently the Court of Milan has again expressed itself on the notion of artistic and simple photographs.

The case was brought by a photographer alleging the infringement of the copyright of a photograph entitled "Human Feelings as Drugs", consisting of the production of photographs, prints and posters reproducing medicine vials in various colors, bearing emotional labels "Empathy", "Hope", "Love", "Peace" and "Joy". The artist intended to spread a message of ​​taking "feelings as medicines", so as to "allow the patient an instant reawakening of perception and a reintegration within the vital flow of emotions".

Plaintiff complained an illegal reproduction of his photograph through a series of pendants - matched with necklaces and bracelets - that would have reproduced their own phials, with identical words reproduced on the labels and asked for an injunction, the award of damages and publication of the decision.

The Court stated that in the matter of photographic works, the artistic character presupposes the existence of a creative act as an expression of an intellectual activity compared to the mere material technique. The reproduction of the photographer must transmit a message that is further and different from the objective crystallized representation, consisting in a subjective interpretation suitable to distinguish a work among other analogous ones having the same representation. The requirement of the creativity of the photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted into the picture his own imagination, taste, and sensitivity, so as to transmit his emotions.

With respect to photography, the artistic nature of reproduction can be inferred regardless of the subject reproduced.

In the case under examination, the Court has excluded the artistic nature of the images, since it is impossible to recognize precisely those aspects of originality and creativity that are necessary for recognizing full protection under Italian Copyright Law. Plaintiff did not indicate the manner in which the photograph was shot or a selection of lights or even specific doses of light and dark tones.

The Court also dwelt on the further infringement of copyright as an overall artistic work excluding the plagiarism of the defendant as it found that the comparison between the two works highlighted certain important differences between the two artistic works.

EVEN A WINE GUIDE IS A PROTECTED CREATIVE WORK.

In a recent decision, the Court of Rome ruled on an unfair competition case between two wines guides "Bibenda" (published by Bibenda Editore) and "Vitae" owned by AIS (the Italian Sommelier Association). The Court found relevant similitudes both relating to the physical format of the Guide and the descriptions of companies and wine production data, and "strong elements of consistency in the sequence of arguments".

Immediately after the interruption of a collaboration between the two parties, AIS  began to distribute a new Wine Guide to its members, called "Vitae", but it appeared to the authors of "Bibenda" too similar, under a multiplicity of points of view, to the one created by them according to well-defined editorial criteria. Criteria which, according to the judgment, are sufficiently similar to those adopted by Ais for "Vitae". For this reason the Court upheld Bibenda Editore's requests and stopped the publication of future editions of "Vitae". Ais was also sentenced to pay damages (still to be quantified) in favor of Bibenda Editore.

According to the judgment of the Court "an analysis of the guide published by the defendant (AIS) shows significant similarities with the Bibenda’s Guide in relation to the volume size, the material used for the cover, the binding and the fonts used and the format.

Significant similarities can be found in company descriptive descriptions, in both guides, with the same sequence and within an identical structural context and according to a common graphical presentation, data relating to company name, address, internet site, mail address, year of foundation, property, bottles produced, vineyards, direct sales, company visits, introductory part, name wine, typology, grapes, alcohol content, price, bottles produced, tasting, winemaking and matching.

It is also common to evaluate products with symbols placed on the right side of the pages.

As already noted, the two guides have strong similar elements in the sequence of arguments (...) ". On the basis of these arguments, the Court of First Instance upheld Bibenda’s claim and prevented the Italian Sommelier Association from publishing Vitae's guidebook unless significant adjustments would be made to substantially differentiate it from Bibenda's guide.

Wild Selfie

A US court has recently put an end to the legal battle over Naruto’s selfie, the Indonesian macaque which became famous for his selfie. The Court's ruling was in favour of Mr. Slater, the owner of the camera, and rejected the claims of PETA, a US non-profit organization, which supported for the monkey’s rights.

The bizarre case in 2011, when David Slater, a professional photographer, was travelling in the Indonesian wild forest to capture with his camera some of the most spectacular animal species. Slater bumped into a group of monkeys and left his camera unattended for a few moments when a photogenic macaque, Naruto, grabbed his camera and began to shoot hundreds of selfies. Some of these, as well as those of the best instagrammer, were moved and blurred, others, instead, were almost perfect. The photographer published one of the photos on his blog and immediately the image became viral. Based on a literal interpretation of American copyright law, Wikimedia, the American-owner company of the Wikipedia domain, decided to include the image in its collection of Wikimedia Commons content, a collection of over 20,000 public images and videos that can be used by the community as they are unaffected by copyrights. According to American law, the rights upon a photo are owned by its author, which is the person who took the photo and, in this case, it was a monkey. Salter opposed the free disclosure of the image he considered to be his own and he gave rise to a legal dispute over intellectual property: if a monkey takes a photo, whose is it?

Over the years, the issue has become increasingly complicated and increasingly absurd: PETA, already known for its provocative battles, filed a lawsuit in the name of Naruto, Slater and also Blurb, a publishing house that published the Wildlife Personalities book, containing many animal pictures, including Naruto’s one.
Both Slater and Blurb presented a "motion for dismissal": a document used in the US legal system in order to explaining that the case against someone is wrong and based on non-existent reason. In this document, Slater wrote, among other things, that "the only relevant fact in this case is that the plaintiff is a monkey that sue for copyright infringement." According to Salter, PETA can not prove that the famous selfie was shot by Naruto and not by another monkey.
And in fact, the judges agreed with him, ruling that he has, and the monkeys cannot own any copyright over a selfie.
Despite this, PETA and David Slater have reach an agreement: the photographer will pay 25% of the revenue generated by his copyright to the non-profit organization.
 

The EUCJ's Ruling on Pirate Bay.

With the recent judgment C-527/15, the European Court of Justice has stated the copyright infringement by "The Pirate Bay", a file sharing web portal. The ECJ affirms that Copyright is violated even if files are uploaded by third-parties, (i.e. the users), as "Pirate Bay’s administrators can not ignore the fact that their platform gives access to published works without the permission of the rights holders."

The arguments used by the Court to censure Pirate Bay seems quite innovatie with respect to the philosophy that has been the base of these operators’ business so far.

Firstly, the Court of Justice ruled that sharing platform managers establish, through their activities, a form of public communication which, under Article 3 of Directive 2001/29 / EC, requires the right holder’s consent for the use of the work in question. In fact, administrators, by publishing content uploaded by users, play an "crucial role" in making them available, such as indexing and managing the various files, categorizing works and deleting old and obsolete files. Lastly, in its observations the EU Court has pointed out that sharing website are liable also because of the considerable advertising revenue generated by the publication of these files.

It is clear that this ruling regards the whole online sharing platform system and increases the responsibility for illegal content uploaded by users.

According to some experts, however, the ruling will have an impact not so much in the world of piracy but rather in the legal sharing video website and on the social network. In fact, having held that works’ provision on a sharing platform constitutes a public communication has more effect on free sharing platforms, such as Youtube, which are part of the so-called User Generated Content (UGC) and that use the streaming rather than actual piracy. Therefore the risk is that UGC sites are too easily assimilated to the category of outdated download torrent website like, indeed, Pirate Bay.

The fact that manager is responsible for actively managing and filtering certain content, seems to prefigure a direct and general responsibility for third parties uploads.

The European debate will be heavily influenced by this decision, because in these days the European Parliament is working on a reformation of copyrights and the relative online platforms’ responsibility.

A unique decision by an Italian Court on online streaming.

Uploading films protected by copyright  on the internet is not in itself an illegal activity. This is what has recently ruled a minor Court in Italy, which cancelled an administrative fine of more than 550 thousand euro issued against a website which allowed visitors to watch online pirated movies. 

In particular, the italian judge upheld an action against a decision of 2015, according to which the manager of the website was fined for copyright violation. According to the Italian Court a copyright violation through a web-site that host links to movie and music streaming is not automatic, but it requires an investigation to establish the existence of a scope of profit, as stated under article 171 of the Italian Copyright Law. In this case, the judge has ruled against the existence of a scope of profit, notwithstanding the existence of banners . According to the Court sharing files protected by copyright, allows the owner to save expenses and is not an activity which contains a scope of profit.  

Facebook's Copyright Infringement case continues in front of the Court of Milan

The case between Facebook and Faround will be heard in front of the Milan Court of Appeal on April 4. In the first degree Facebook was sentenced for the first time for unfair competition and copyright violations against Faround, a software application created in 2012  by the Milan-based company Business Competence.

On the first instance the Milan’s Court, had held that Facebook’s application Nearby was infringing Fararound’s electronic database which is protected under Italian Law.
Faround selects data on Facebook, through the profiles of registered users, and organizes and display them on an interactive map. The map then shows shops near to the user's position, also with relatives reviews and information on discounts and offers. Indeed this information is not owned by Faround. However the Court held that the mode of their organization holds a degree of originality which should be granted copyright protection. In fact, "the previous programs developed by Facebook (Facebook Places) and by third parties (Foursquare and Yelp) did not have the same capabilities as Faround: the first was a kind of pager to reach friends and not a geolocation of shops close to the user, while others were designed on the basis of logical algorithms working on the base of data entry provided by members of their social networks, and not Facebook’s.”
For these reasons, the Business Competence Srl accused and sued Facebook for infringing the application’s concept and format, launched with the name of Nearby. In addition, Nearby attracted professional advertisers, perpetrating unfair practices on the advertising market.

The Court of Milan, found that the two applications had the same functionalities and overlapped and ruled for the publication of the decision on the newspapers "Corriere della Sera" and "Il Sole 24 Ore" and, for at least fifteen days, on home page of facebook.com. The Court also banned any further use of Nearby in Italy, placing a fine of 45 thousand euro for each day of violation of its order . Facebook has appealed the decision in front of the Appeal  Court of Milan, which, at the moment, has rejected the suspension request of the provisional measures imposed at first instance.
 

How can you protect the concept of an Art Exhibition?

A recent ruling of the Supreme Court held that an exposition may be considered an intellectual work and, thus, it can be protected by copyright. Therefore, moral and economic rights can be recognised to curators or the organizers. The realization of an exhibition may be the expression of a creative idea: on the one side you protect the concept, that is the originality of the theme, on the other side, you protect the project, ie the creative operation that precedes the actual preparation. In this sense, the exhibits are the result of a complex and expensive process of planning and organization, which deserves to be protected.

The case submitted to the Italian Supreme Court concerned a TV report released by RAI SAT, which, presenting an exhibition, didn’t respected its content, violating the economic rights recognized by law to the authors of the work. It was ascertained the creativity of the TV show, as necessary element of a copyright. In other cases, the Italian courts had rejected requests for declaration and protection of a copyright because there were no evidence that the objects of the exhibition had been arranged in an original way. In some cases, moreover, the judges have gone further and have expanded the protection to entire museums. It's what happened in Paris when in 2006 the Courts have recognized the quality of "work of genius" at the Museum of Cinema Henri Langlois.

Although Italian Case Law seems to agree in granting protection to exhibitions, it seems harder  lead the case to a legal institution provided by the legislator. In our legal system, protection of copyright is guaranteed by the provisions of law n. 633 of 1941, which includes all the works belonging to “literature, music, visual arts, architecture, theatre, cinematography, ..., as well as databases that, for the selection or arrangement of their contents, constitute own intellectual creation”. With an interpretative effort the exhibition could be considered as a database, since it is a "collection of works, data or other materials, arranged in a systematic or methodical way” (article 2, subparagraph 9, l 633/41). Or, you may include the exhibition within Article 4 of Law 633 of 1941, which recognises as intellectual works also derivative works, i.e. "the creative processing itself, such as translation into another language, transformations into any other literary or artistic form, modifications and additions constituting a substantial makeover of the original work, adaptations and abridgments which do not constitute an original work ".

In both cases, an essential condition for the existence of a copyright for shows and exhibitions is the originality and creativity of the intellectual work.

How is Blockchain Technology going to change the Legal Industry?

Blockchain is a public ledger which can be applied to almost anything that you would normally save to a database or spreadsheet.

Fundamentally, blockchain is a program from which to build a system of accounting or process. One network called Ethereum, which has been described as a “decentralized virtual machine that can execute peer-to-peer contracts” is leading the charge with smart contracts and the law.

Creation of contracts

The blockchain could alter the landscape of contract attorneys. Part of what makes the blockchain so special is that not only does it keep records which are immutable, it also creates a process around that.

For example, I could create a contract which stipulates that when my patent was approved by the Patent and Trademark Office (PTO), my four partners would receive a 10 percent share in my company. How would that work? The contract on the blockchain would check to see if the patent was approved, then trigger a process releasing the shares to the partners.

All of this would be automated and fall outside of human legal action. Indeed, you could go one step further and tie in a payment system so that when that patent was granted, bonus funds could be dispersed automatically into the accounts of said partners.

Intellectual property

If blockchain is ripe for anything, it is IP. This technology creates a publicly accessible, indisputable ledger of each filing which could be held not solely by jurisdiction but on a global scale benefiting everyone.

This information would offer clean and clear rights of use for all parties. You could even submit your trademark through the system. Leveraging an algorithm identifying any likeness to the trademark, the system could then grant or dismiss it. All of which would become part of the public ledger for anyone to review.

Land registry

Wealth is created through ownership, and one of the most challenging aspects of developing countries is determining who owns a piece of land. Disputes often occur because of corrupt governments or individuals taking advantage of the under-educated.

Having a public blockchain ledger would allow for everyone to be aware of who owns which parcel of land; and it would make the exchange of those plots much easier and more equitable.

If a family were to buy a plot of land that could be registered on the legal blockchain, it would be much more verifiable than even perhaps government records. All parties would be able to authenticate this as compared to one entity (the government) holding onto all the records. This process would even create a better base for the government to fairly tax individuals and businesses.

Some Latin American countries are beginning to use blockchain as a means to keep track of who owns which land deeds.

Establishing records

In some African countries they are looking at using blockchain technology to keep census information. Voter records could also be added to this process as a means to have a central repository of eligible citizens. In this area, which is currently under development, blockchain seems primed for tremendous growth.

Financial service industry

The banking industry also is jumping into this arena. The theory is that our stock exchanges will become blockchain-enabled. The idea is simply that every stock bought or sold would be on the ledger. You could trace back your own ownership of that equity and even tie that to your estate-planning documents.

Extrapolating this out, those documents also could be housed on a blockchain with respective triggers for when you eventually die. Ultimately that information is then released to your beneficiaries based on that event (Date of Death) recording by the Social Security Administration (SSA).

Elena Ferrante. Between the "Right to be Forgotten" and Privacy.

“I don’t hate lies, I find them healthy and I use them to hide my person”. 
Thus, it’s written in the autobiography entitled La Frantumaglia by the famous and mysterious Elena Ferrante, whose identity seems to be revealed today.
The author of books become bestsellers is, according to a recent 24Ore’s report, Anita Raja, a translator born in Naples and resident in Rome, whose mother was a Polish Jew escaped from Holocaust. Therefore, the mystery of Elena Ferrante seems to be resolved. Thus, the millions of readers’ (lawful?) dream, who wish to know the name and person behind the famous pseudonym, finally come true.
Firstly, the question is if the report has violated the right of pseudonym. The pseudonym indeed can be used to conceal its true identity, so as an expression of privacy right.
According to Civil Code, pseudonym is a name different from the one attributed by law. However, it can be protected as well as the right to have a name, provided that the pseudonym has achieved the name’s importance otherwise it has carried out the same social identification’s function. If this requirement occurs, (i.e. writers and actors whose pseudonyms are more famous than their name) the person who use pseudonym can demand a restraining order and claim the termination of the pseudonym’s unlawful use, without prejudice to compensation.
However, it doesn’t seem to be the case. The Sole 24ore’s report indeed doesn’t infringe the famous writer’s pseudonym, on the contrary it seems to violate her right to anonymity. The problem is that according to Italian legal system, the general right to anonymity doesn’t exist.
Could Elena Ferrante, who has always said that she doesn’t want to reveal her real identity, invoke protection of Privacy Right (that it is increasingly being denied to public figures)?
Before Privacy Law entered into force, the source of the right to be left alone was a 1975 Italian High Court judgment, that describes this right as the protection of personal and family situations and events which, although they occur outside domestic context, they don’t have a socially valuable public interest. Therefore, violation of right to privacy means any interference that, even if it is carried out by lawful means and for non-offensive purposes, is not justified by reasonable public interests.
Eventually, jurisprudence specified that famous people are supposed to have waved to the part of Privacy Right which is connected to the public context.
Therefore, the line between the right to privacy and the right to information seemed to be the subject’s fame. However, even very popular people retain the privacy right, limited to facts which have nothing to do with the reasons for their popularity. 
The relationship between the right to report and privacy right is very complex and it is regulated by a set of rules stratified over time which have tried to establish a proper balance between the different interests.
There are several privacy rules that journalists have to respect.
The 675/1996 Law regarding Personal Data Protection, then become “Italian Personal data Protection Code” (Legislative Decree no. 196 of 30 June 2003), has created an extensive system of balancing conflicting rights through the provision of several legal means: balancing policies, procedures to accomplish it, jurisdictional instruments.
Italian Law provides different guarantees depending on the nature of Data. Briefly, the use of Personal Data is possible if three conditions are met:
­    The use of Personal Data shall be related to freedom of expression
­    Personal Data shall concern public interest facts
­    the spread shall occur "within essential limits", that is, it is not possible to insert non-strictly necessary information.

The report on the true identity of Elena Ferrante has not been clearly neither confirmed nor disproved. Therefore, if she is really Anita Raja is still a mystery.

Do you use Instagram?

Instagram, like many other image-sharing platforms, needs you to grant them the right to display your images, or else they would be violating your copyright by displaying your pictures in the app. Obvious? Maybe, but there’s more to it…

1.    You grant them a License

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels…

Does this mean you still own your pictures? Well, yes, but they can use it whenever they want. At the moment, they only use user pictures in seemingly harmless instances like blog posts and whatnot, so it may be true that the chances of Instagram exploiting user content for profit aren’t that high. That clause, however, is still there. Not to mention that if you’re on Instagram, you already agreed to it.

2.    Not unless your account is set to ‘Private’

…except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. 
Great! But what if you use Instagram to gain followers? 

3.    Reps and warranties…

You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, DO NOT TAKE ANY PICTURE FROM THE INTERNET AND POST IT IN YOUR INSTAGRAM. 

4.    You wanna read the last sentence in that quote again? Ouch.

You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, the people over at Instagram have their backs covered. They won’t waste a penny if you get in trouble. This is why you don’t want to get sued (other than, well, obvious reasons). If the entity that sues you decides to include Instagram in the lawsuit (which they probably will since it was their service you used), it is my understanding from this clause that you could end up paying for your lawyer AND Instagram’s lawyer. That is, in addition to any damages you owe for copyright infringement, should you be found guilty. Ouch? OUCH.

By the way… Instagram is awesome, though, check it out if you haven’t done so already.

The Court of Rome Rules on Copyrights Published on Facebook

The court of Rome reaffirms the application of the rules of copyright for the pictures posted on the social network by establishing that publication of photos on the Facebook page of the person who has taken them "does not involve the complete waiver of the relative copyright".

According to the Court, the freedom of use of the content posted by users by setting the 'Public' function does not cover the content that is published and which covered by intellectual property rights of users, for which the only license is the non-exclusive, transferable granted to Facebook". Under this principle the author of some photos published on Facebook was awarded damages against a newspaper that had published the same without permission.

The case stems from the publication of some photos on the personal page Facebook of a young photographer shot in nightclub in Rome. The photos then appeared, unknown to the author, in a national newspaper in support of a series of newspaper articles, related to the phenomenon of frequenting nightclubs by persons of young age and subsequently re-used by some programs television of national importance.

Why Shutting down Pirate Sites is ineffective.

A few years ago Europe witnessed the largest piracy-related busts in history with the raid of the popular movie streaming portal Kino.to.
Police officers in Germany, Spain, France and the Netherlands raided several residential addresses, data centers and arrested more than a dozen individuals connected to the site.
The operation wiped out the largest unauthorized streaming portal in Europe and was praised as a massive success. However, new research from the European Commission’s Joint Research Centre shows that the effect on end users was short-lived and relatively limited.
In a working paper titled “Online Copyright Enforcement, Consumer Behavior, and Market Structure” researchers examined clickstream data for a set of 5,000 German Internet users to see how their legal and illegal consumption habits changed in response to the shutdown.
One of the main conclusions is that the kino.to raid led to a short-lived decrease in piracy, after which piracy levels returned to normal. At the same time, the researchers observed only a small increase in the use of legal services.
It appears that while users of kino.to decreased their levels of piracy consumption by 30% during the four weeks following the intervention, their consumption through licensed movie platforms increased by only 2.5%,” the paper reads.
Based on the above the researchers conclude that if the costs of the raids and prosecution are factored in, the shutdown probably had no positive effect.
One of the policy implications could be to advise against these type of large piracy raids, as they do very little to solve the problem at hand.
However, the researchers note that the results should be interpreted with caution. For example, it doesn’t include any data on offline sales. Similarly, back in 2011 there were relatively few legal options available, so the effects may be different now.
That said, the current findings shed an interesting light on the limited effectiveness of international law enforcement actions directed at piracy sites.

Italian Radio Station Sentenced to Pay Overdue Neighboring rights

The Court of Milan, with ruling notified on August 2, 2015 sentenced that the nation wide known station radio RTL is obliged to pay to SCF, the Italian consortium of  record producers a sum equal to 2% of the gross receipts.

The judges of the court of Milan have ruled in the context of disputes brought by SCF in 2009 against the major Italian national radio networks. This past April SCF has reached an agreement with other broadcasters involved and judgment continued only against RTL that has not adhered to these arrangements.

The Court, after repeating the substantive and procedural legitimacy of SCF, sentenced  that in the absence of other agreements between the parties, the extent of the compensation for the direct disk or similar device due to the manufacturer in accordance with art. 73 L.A. is equal to 2% of the proceeds.

Copyright enforcement for graffiti?

If it sounds novel to apply copyright to graffiti art, that’s because it is: lawyers who work in this area say it’s not clear anyone has ever tried this in court. Copyright law could be extend to art that's on public walls? It very well may. Anasagasti, a rising star in Miami’s art scene, was the first graffiti artist to seek protection for his work: he hired a lawyer and filed a copyright infringement accusing American Eagle of stealing his work and looking for monetary damages.

Later, a large number of other artists filed suits against various corporations for copyright infringement. One was against the Italian fashion designer Roberto Cavalli for creating clothing, bags, and shoes that supposedly misappropriated a San Francisco street mural as its background print. All the artists claim their artwork was created legally and registered for copyright. Actually in the United States the requirements to obtain copyright for visual art are very low, there are only two requirements for an artwork to be eligible for copyright: it must be secured in a fixed medium and it must be original.
The lawsuits affirm that corporations have gone beyond any exception, putting the street art to use for their own commercial purposes. As Anasagasti’s suit argues, “In today’s fashion industry, affiliation with artists bearing such ‘street credibility’ is highly required by retail brands for the cultural reputation and access to the profitable youth demographic that it offers.”

How much is that street credibility worth? Both lawsuits spread some light on how could this value be measured. In Anasagasti vs. American Eagle as well as in the San Francisco artists suing Roberto Cavalli the value has been determined on sales data, including its software that tracks exactly how many customers viewed the ads and subsequently made purchases.
It’s not clear why the defendants wouldn’t have reached out to ask the artists for permission to use their work. They must have just thought that urban artists aren’t organized and aren’t going to think about copyright protection.

Nothing could be more antithetical from the “street culture” than luxury and glamour.

Seeking copyright protection may sound like the latest evolution of street art away from its outsider origins, but street artists have always pretended greater control over their work. Street artists don’t earn easily with their works, if corporations take advantages of their works, they deserve to be paid. If somebody's going to profit from this art, copyright may be just the instrument for ensuring that somebody is the artists themselves.

By Francesca Filipo

The Battle over the Next Great Disruptive Technology

By Francesca Filipo and Martina Clochiatti

A 3D printer turns a blueprint into a physical object, built up layer by layer with a computer aided design program (CAD) simply running on your desktop computer.

Since 3D printers turned 3D printing professional services into low cost and on demand facilities, a wide range of products can be easily designed and manufactured at home. Any type of design can be found on the net where 3D printing communities share their files. No matter how it is created, once the CAD design exists it can be widely distributed just like any other computer file.

In many ways today’s 3D printing community resembles the open source community of the early 1990s. There is no central institution giving directions: users themselves invest time and thought in the evolutionary process. They are a relatively small, technically proficient group sharing their creations.

Popular websites like thingverse.com or shapeways.com where anyone may upload and download the design of a number of items were immediately facing IP rights infringement claims.

Recently, Moulinsart, which owns the rights to the cartoon Tintin, served Thingiverse with a Millennium Digital Copyright Act takedown notice. Thingiverse has been forced to remove a design individually developed by an user and freely inspired to Tintin character.

The same happened for the famous Star Wars Yoda character that, despite being turned into different objects, still represents a copyright infringement. The bust of Yoda is not something that you can duplicate or re-elaborate: “Even when designers take an object like that and change it, it's still legally protected”, as Disney legal team said.

Copyright, designs, patents and registered trademarks are the four IP classes that may be infringed by using a 3D printer. Many of these issues have already been discussed with regard to file-shared music and movies. Although 3D printing of copyrighted objects at home may constitute an infringement, the copyright will become increasingly impractical or impossible to enforce.

Technically, a consumer who copies a work by printing an already existing object will be liable for copyright infringement unless the consumer has permission from the copyright owner or only privately uses the printed object.

In this context the majors industries are trying to fight back the new digital era developments by strengthening IP rights, however it is undeniable that at some point a compromise will be necessary.