Digital art protectable under copyright? Yes, says the Italian Supreme Court

As the well-known Sanremo Music Festival is approaching with the 2023 edition, the Italian Supreme Court recently issued decision No. 1107/2023 involving RAI - Radiotelevisione Italiana.

This decision was rendered in the context of proceedings concerning the alleged unlawful use of an art work created using software in a past edition of said Festival. The Supreme Court recalled the conditions of protectability of an artwork in a case involving a work created using software.

 

Background

 

The author (an architect acting under the pseudonym Lindelokse) sued RAI before the Court of Genoa. The plaintiff claimed that she was the author of a graphic work representing a floral composition named “The scent of the night” and claimed infringement of her copyright by RAI as a fixed set for the 2016 edition of the Sanremo Music Festival together with compensation for damages, removal of the program registration from RAI's website and publication of the judgment. RAI contested all the claims as groundless. Here below the artwork by Lindelokse.

 

The Court of Genoa held that the architect was the author of the work and that RAI had infringed her copyright. It ordered RAI to pay damages (Euro 20.000,00 actual loss and Euro 20.000,00 loss of profit), the removal of the work from its website and the publication of the judgment. The decision was upheld on appeal.  A further appeal to the Italian Supreme Court was made.

 

The decision

 

The Italian Supreme Court dismissed the appeal. Here are the main points of the decision.

First, an original work can be protected by copyright law only if it meets two requirements:

- originality, i.e., objective novelty compared to creative works or segments of previous creation;

- creativity.

 

Creativity under Article 1 of Law No. 633/1941 (Italian Copyright Law) refers not the idea that underlies the creation of the work, but to the form of its expression, i.e. the personal vision and development of the idea in an original form suitable to reflect the personality of its author. The legal concept of creativity does not match that of creation, originality and absolute novelty, but refers, conversely, to the personal and individual expression of an objectivity belonging to the categories listed, by way of example, in the above cited Article 1.

 

Creativity exists even if the work consists of simple ideas and notions included in the intellectual heritage of persons having experience in the subject matter. A work, therefore, can benefit from copyright protection if it implies “a creative act, albeit minimal, susceptible of manifestation in the external world”. The ascertainment of the creative contribution is the subject of an assessment on the merits and needs to be carried out on a case-by-case basis.

 

The Supreme Court considered that the use of software for the elaboration of a work does not exclude in itself copyright protection for the resulting output. In such a case, however, the Supreme Court considered it necessary to conduct a rigorous assessment aimed at verifying whether, and to what extent, the use of the software tool absorbed the creative elaboration of the artist who used it.

 

Comment

 

The Supreme Court’s decision confirms the definition and requirements of creativity and originality and accepts the protectability of digital art by stating that the mere use of software tools does not in itself rule out protection. This latter statement is particularly relevant in the context of emerging forms of creativity, including those relating to NFTs and AI, as well as issues such as ownership of the resulting rights.

 

Pictures of the artwork by Lindelokse from lindelokse.deviantart.com.

Picture of the cat courtesy by Arianna Antonelli.