Cavallo Marincola
In 2006, THUN (being the owner of several design registrations for such statuettes) started a lawsuit before the Court of Venice against an Italian company, based on design counterfeiting, unfair and parasitic competition and slavish copy.
THUN was not satisfied with the decision of the Court of Venice and filed an appeal, challenging the following points:
The Court of Venice ruled that the Italian copyright Law is not applicable to THUN’s creations, establishing that:
- THUN’s statuettes cannot be considered as sculptures, but simple decoration items, with no features which are typical of artistic creations
- They cannot fall within the copyright rules, as they are mass-produced.
Actually, the Italian Copyright Law (no. 633 dated April 22, 1941) was amended by Decree no. 95/2001 (implementing EU Directive 98/71/CE).
Accordingly, point 10 (Art. 2 Copyright Law) provides for the copyright protection also for ‘’design works showing per se creative features and artistic value”.
The Court of Appeal took these qualifications into consideration, stating that:
- The juridical concept of creativity does not correspond to the concepts of creation, originality and novelty. A work can be protected by copyright whereas a (minimum) creative feature can be identified. Creativity cannot be excluded only because the work consists of simple ideas and concepts.
- Even though the artistic value cannot be easily determined, likewise it cannot be excluded by the fact that the items are mass-produced. On the other hand, the artistic value is to be found through some criterion, not necessarily concurrent, such as:
- Acknowledgement by cultural and institutional background of the presence of aesthetic and artistic qualities
- Display in exhibitions or museums
- Printing in specialized magazines
- Awards conferment
- High market value
The Court drew attention to the fact that design items are not protected under Art. 2, point 4 of the Copyright Law.
This regulation provides protection to: "works of sculpture, painting, drawing, etching and similar figurative arts, including scenic design".
According to the Court, this rule "refers to a creative work which finds its expression in one only sample, or in a limited number of samples, and it is intended to a different, limited market, which is not the industrial manufacturing market".
Accordingly, Art 2, point 4 of the Copyright Law establishes that an item being mass-produced and intended for a consumer cannot be considered as a work of figurative art.
