Italy: The Legal Protection Of Fantasy Characters

Last Updated: 19 December 2007

Characters such as James Bond, Sherlock Holmes and Madame Bovary are so well known that sometimes they are even believed to be or to have been real living people. Other characters such as Don Chisciotte and Don Giovanni are used in everyday language to express an attitude or life style. Mickey Mouse, Superman and Bugs Bunny are more famous than any living actor will ever be. But still, these fantasy characters appear to be almost forgotten in Italy when it comes to the protection of their intellectual property rights.

Art. 2 of the Italian Copyright Act No. 633/1941, which protects artwork, does not expressly mention fantasy characters. Neither the Italian Civil Code nor Art. 1 of the Italian Copyright Act clarify which requirements need to be fulfilled by an artwork in order to be protected.

However, in the few Court decisions regarding this issue, Art 2575 of the Italian Civil Code and Art. 1 in conjunction with Art. 2 and 12 of the Italian Copyright Act have been applied to provide legal protection to fantasy characters. In short, if fantasy characters are the outcome of an original idea and have creative original characteristics and personalities, they are considered an intellectual artwork, which falls under the protection of copyright as an independent part of the whole opera. Therefore, until the copyright period expires, such characters are protected against any economical utilization without the prior consent of their author.

With regard to film (including cartoon animation) or opera characters, some Italian judges have decided that these may be protected as a copyright work if the level of character development is so high that the fantasy character has become the most relevant element of the film or opera so as to become an unicum irrepitibile (i.e. something unique that cannot be repeated).

With specific reference to comic strip characters, Court decisions have stated that these are protected by Art. 1 and 2 of the Italian Copyright Act as a composed artwork. According to these decisions, the artwork is composed of the graphic element - the drawing of the comic character itself - and the literary part that indicates the attributes and the characteristics of the comic character described through the descriptive text, the jokes and dialogues.

Of course, the name and the graphical depiction of fantasy characters can also be registered as trademarks, thus enjoying the additional protection granted by Art. 20 of the Italian Industrial Property Code, as well as protection granted under the rules of Unfair Competition.

In order to establish whether or not a fantasy character enjoys copyright protection, a distinction should be made between the idea of the character and the character itself. Copyright law cannot protect the simple idea of a character type, for instance, a man with exceptional powers that make him a super man. It takes the expression of the idea - the elaboration and characterization through drawings, pictures and/or the written descriptions of a unique and original character with well-defined character and behavioural elements such as the well-known fantasy character Superman - to make this character eligible for copyright protection. This shows how difficult it is to decide whether or not a certain fantasy character deserves such protection.

At the same time, once a certain character is afforded copyright protection, the question inevitably shifts as to how to determine the extent of such protection vis-à-vis imitations or copycats.

In fact, if the actual mode of expression – and not simply the idea – provides the basis for the legal protection, any comparison between the copyright work and the imitation/copy should focus on the reproduction of the characterizing elements – such as graphic, visual or even more abstract features, provided they are perceived by the public.

This assessment can prove very difficult, leaving the door open for a strongly subjective assessment by the Court from which no general criteria can be easily inferred. As always, the Judge will have to decide these issues on a case-by-case basis.

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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