Italy: Can Art Installations Benefit From IP Protection? Italian First Instance Court Takes An Affirmative Approach

1. The question of how far IP protection can be stretched in relation to creative work has kept Courts busy over the last decades.

Earlier this year a First Instance Court in Milan (Italy) was approached in order to assess whether such protection could be invoked for what goes under the definition of an 'art installation'.

2. In 2007, a designer and an art director created an artistic installation in the context of a project performed in favor of a not-for-profit organization. The work consisted in lamps, assembled as a giant puzzle and resulting in a light wall in red and white (the idea was to have this giant puzzle entering into the listings of the Guinness Book of Records).

The intertwined puzzle tiles were also registered as a national figurative trademark.

3. Four years later the authors of the installation noticed that a very similar work (a lamp puzzle) had been used in a TV commercial promoting a pharmaceutical product.

Feeling that their author's and owner's rights had been infringed, the designer, the art director and the not-for-profit organization filed a claim with the IP Section ("Sezione Specializzata in Materia di Imprese") of a First Instance Court in Milan against both, the advertiser (a pharmaceutical company) and the ad agency who had prepared the campaign, seeking for injunctive relief and damage compensation.

4. The defendants argued that the particular kind of installation could not benefit from IP right protection, insofar as it did not present the characteristics of 'novelty' and 'creativity', essential to the purpose. They claimed that puzzle tiles were constantly used outside of their 'natural context', i.e. that of a game (e.g. for composing the American flag).

5. The Court disagreed with defendants' arguments, holding that:

- 'Novelty' had not to be sought in the use of the lamps, rather in their assembling.

- The concept of 'creativity' was not invalidated by the fact that the work had made use of ideas and items pertaining to the general knowledge of an experienced person. In the specific case, 'creativity' was to be found in the combination of items of common use (the lamps) for a completely different – original – purpose, i.e. that of combining them into a puzzle light wall.

- 'Notoriety' had also to be taken into account and as to that plaintiffs had succeeded in substantiating that the light puzzle had been presented at MiArt (an international furniture fair), had been exposed in several renown parks and locations in Milan (e.g. the Sforza Castle, the Museum of Natural History), had also been exhibited at furniture fairs in Paris and New York, at design fairs in Poland and Barcelona, Spain, at the international Poetry Festival in Cuba, and, finally, had received extensive coverage in the art magazine Exibart.

Hence the Court's conclusion that a work like the one in dispute could definitely be considered as suitable to benefit from IP protection.

6. On such premise, the Court found that (judgment no. 1719 of February 9, 2016):

- The agency had acted with fraudulent intent, having knowledge – through its CCO and EVP – about plaintiff's art installation,

- The advertiser had failed in performing a proper in-advance check about the IP rights of the represented work, therefore facing joint liability with respect to the ascertained infringement.

It therefore:

- Served the defendants with an order imposing to restrain from further infringing conduct and establishing a daily fine of Euro 500,00 for any delay in compliance or further violation (after a thirty days' period had elapsed from the date of the decision's publication).

- Awarded Euro 20.000,00 in moral damages in favor of the designer and the art director and Euro 30.000,00 in actual damages (i.e. financial loss) to all the plaintiffs jointly (where such latter amount was determined by making reference to the standard criterion of 'common price of consent', which authors/right owners were likely to charge for permitting the use of their work).

- Ordered the defendants to bear the costs for giving a single, public notice about the judgment on a national newspaper.

- Served the defendant with the legal fees for the proceeding, determined in Euro 12.000.

7. Advertisers and agencies will need to consider that sometimes even simple creations or peculiar executions of common ideas deserve some adequate in-advance thought about ownership and author's rights, being capable of not resulting totally alien to IP protection.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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