The Italian Court of Cassation, by the judgement issued on March 2nd 2015, No. 4216, ruled on plagiarism of a creative work, focusing on the requirements that the plagiaristic work should own to establish or avoid the infringement.

The abovementioned judgement ruled on the dispute arose between the author of a theatrical work, on one hand, and RAI Radiotelevisione Italiana S.p.A. and Vega Cinematografica S.r.l., on the other hand, in order to obtain the declaration of plagiarism of the above-mentioned work, created by the plaintiff, by an episode of a TV series.

First of all, the Supreme Court stated that, in order to establish the plagiarism, the plagiarized work has to be protectable according to the Italian Copyright Law (Law n. 633/1941) and, consequently, such work has to own the requirements of expressive completeness and novelty.

In this regard, the Court joined the predominant case-law on the matter, stating that even the works with simple and elementary expressive forms are protected by the Italian Copyright Law. In fact, the Court, confirming the ruling of the Court of Appeal of Rome, even with regards to the nature of the work created by the plaintiff as creative work, observed that the examination of the two works’ texts highlighted that they had the same idea at the basis - founded on the situation of a couple that cannot have children - but without meaning that this idea can be considered original, new and/or protectable.

Indeed, the creativity, in the intellectual property range, is not made up by the idea, but by the form of its expression and by the subjectivity, so that the same idea can be the basis of several works - as is obvious in artists’ works - which, however, are or may be different for the subjective creativity that each of the authors spends and that is important for obtaining protection.

Furthermore, with such decision, the Supreme Court caught the opportunity for making clear that there is infringement of the exclusive rights not only when the work is fully copied (as in common plagiarism), but also when there is counterfeiting, when, therefore, the plagiaristic work holds differences and similarities. In such case, according to the Court, counterfeiting may be detected by examining the essential elements of the two works and assessing if they still belong to both of them. Only in this case, plagiarism could be established, considering with no value the differences in detail.

In light of the above, the Supreme Court, confirming the judgement of the Court of Appeal, stated that the two works had a weak similarity and, consequently, excluded the plagiarism of the theatrical work by the TV series broadcasted on RAI.