Drinking culture: what’s wrong with it?

Birra Napoli's advertising campaign

Including a copyright work into one’s own advertising campaign? It might not be always be a great idea, especially if the use is unauthorized.

Katfriend Federica Pezza (Legance) discusses the recent dispute in Italy surrounding street artist Jorit Agoch.

Here’s what Federica writes:

Sunday afternoon, sofa time, watching the match. Somebody shouts: “Shall we grab a beer?"

That may be a very typical scenario. Yet, if on that sofa you are being offered a Birra Napoli branded beer, than that same scenario might raise some issues.

Indeed, the recent campaign launched by Peroni beer company (recently acquired by the Japanese Asahi Breweries group) and aimed at promoting the city of Naples and its enchanted spots has already been subject to a number of criticisms. Interestingly, the main one comes from street artist Jorit Agoch, who is well-known on a national and international scale thanks to his artistic production, including inter alia his San Gennaro located in the borough of Forcella. More precisely, as the artist claims, the beer company would have infringed his copyright in the artwork by including San Gennaro in its latest advertising campaign. As a result, the half-Italian artist has requested the company to pay EUR 50,000 as a compensation for the damages suffered. The amount, as the artist stated, shall be used to fund the realisation of a new artwork in the Naples area.

This is just the last case in a string of claims relating to street art. Indeed, just last month, another well-known artist, Anish Kapoor, settled the lawsuit he had started against the National Rifle Association in the US, having the latter agreed to erase an image of his Chicago-based sculpture known as The Bean that it had included in one of its videos.

Somewhat similarly, also Peroni, with the aim of avoiding further legal complications, ordered its graphics to take down Jorit artwork from its advertising campaign. However, this case is currently far from being settled, and the artist seems determined to go ahead with his claim.  Therefore, it gives to us the opportunity to discuss some interesting legal issues concerning copyright law under Italian law.

Street art: protectability under Italian law

As a starter, one shall consider what the legal status of street art is and if this is subject to protection under copyright law. In Italy, the relevant provisions to be considered are included in Law 22.04.1941 No. 633 (Italian Copyright law, hereinafter ICL). According to Art. 1 ICL, protection is granted to all “creative intellectual works”. Also, protection is “irrespective of the way and type of expression”. Art. 2, No. 4, ICL includes artistic creations in its non-exhaustive list of protectable works. In addition, the Italian system is agnostic to the question of lawfulness of the work at issue. In this sense, lawfulness underlying the creation of a work – meaning by this the existence of a previous authorisation –  is not regarded as a condition for protection to arise. 

Katbeer

Copyright infringement and freedom of panorama: drawing the line

Once the issue of protectability has been positively dealt with, a second question arises. Art. 12 ICL vests the to the author with the exclusive right to commercially exploit the work he/she created in any form and way, within the limits of the ICL. Thus, based on this provision, the reproduction of Jorit’s artwork and its commercial exploitation in Peroni’s advertising campaign, in the absence of any previous authorisation by the author, might result in the infringement of Jorit’s exclusive rights.

This said, one should consider the deep connection existing between street art and the environment it belongs to. This consideration triggers two further ones.

In first place, one might wonder whether there is any room for the application of the so-called “freedom of panorama” defence. The InfoSoc Directive, in fact, allows Member States to introduce an exception in their copyright laws to allow the "use of works, such as works of architecture or sculpture, made to be located permanently in public places". As pointed out in a previous post of mine, in Italy the situation is interesting for many reasons, including due to the fact that, while formally it does not have an exception allowing freedom of panorama, in 2008 the competent Ministry stated that making reproductions of copyright works permanently located on public display is not to be regarded as a copyright infringement. As already noted, currently, the discussion whether or not freedom of panorama exists in Italy is far from settled and the lawfulness of each reproduction of a cultural work is to be assessed, case by case, pursuant to the applicable rules of the ICL and the Cultural Heritage Code. Also, and in addition to this, when coming to street art, the same notion of “permanently located” artwork might prove to be a challenging one.

Estrella Galicia Camino de Santiago

Street art as common goods: Estrella Galicia and its benefit-sharing model

The second point is connected to the legal status of street art, namely the debate concerning the possible qualification of street art as “commons”. Such approach, based on a constitutional notion of property, is rooted within the social and cultural role played by art for the society. This cultural value is particularly high in the case of street art, which, by its own nature, is intrinsically related to the context in which it is conceived. Indeed, this very approach might be in line with Jorit’s claim and request. Indeed, the compensation sought by the artist is meant to be used for the creation of a new artwork and, by this, more in general, for the promotion of the local culture of the city of Naples.

In this sense, a very good example of a different, yet comparable, experience is provided by the Estrella Galicia business model. Last summer, in fact, the popular beer brand decided to commercialise a “Camino di Santiago”-themed beer, inspired to the well-known Camiño and addressed at the Santiago walkers community. For this purpose, all the symbols related to Santiago appeared, clearly depicted, on the bottle. Therefore, also in this case the question was about beer and, again, there was some kind of appropriation. Still, this time no artworks as such were involved. However, the very own Galician culture had been somehow “appropriated” by the beer company. Nevertheless, no claim has ever been brought or even threatened by the Galician community. And in fact, the limited beer edition was connected to the promotion of the very own Galician festival titled “O Son do Camiño”. In other words a benefit sharing mechanism in favour of the community had been somehow provided.