Sunday 29 January 2012

Red bus suggests copyright law is not black and white: an Italian perspective

A red bus in Italy - including a
reference to another
English copyright case
The English case - Temple Island Collections Ltd v New English Teas Ltd -  is arising a great discussion not only in England but even in other European legal circles.

As Rosie correctly underlined in her last post on January 24, this English decision could be objectionable since the Judge focused more on the defendant's attempt to sell more tea - thanks to the association to a famous image - rather than on considering whether a substantial part of the original photograph was copied or not. Therefore, the Judge seemed to be more interested in protecting idea rather than the expression of it, going beyond the scope of copyright.

In Italy, as in other civil law countries, the decision would have probably been the same: the red bus photograph would be considered a copyright protectable work according to art. 2, n° 7 of Italian Copyright law (law n° 633, on April 22, 1941), so that the defendants  would have committed a copyright infringement taking a substantial part of the claimant's photo.

The level of creativity requested to a photograph in order to be considered copyrightable is quite low in Italy. It is sufficient, according to caselaw, that the author's personality emerges through, by way of example: the selection of lights and their sources, the visual angle, the choice of warm and cold colours, at the end, i.e. when the photograph is not a mere copy of reality lacking of any creative trait.

Nevertheless, in Italy the claimant would have pleaded not just copyright protection but even unfair competition, which can be considered, unlike the English tort of passing off, a general remedy against damaging dishonest practices committed by competitors. 

Indeed, the defendant's behaviour could theoretically embody two of the three hypothesis of unfair competition provided by article 2598 of the Italian Civil Code. The first hypothesis occurs when the competitor uses names, distinctive signs or makes any act that can create confusion with the competitor's products or activity, whereas the second one punishes the disparagement of a competitor's reputation or appropriation of a competitor's goodwill.

The defendant's behaviour could be considered confusing, besided being deemed as misappropriation of the claimant's goodwill according to the Italian provision on unfair competition.

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