The case at hand arises in the fields of fine art and performance arts, between Enzo Carnebianca, an Italian sculptor and painter, and Shen Wei Dance Arts, a contemporary dance company founded and directed by Shen Wei, an internationally recognized choreographer, dancer, painter and designer (together “Shen Wei”).
The dispute originated when Mr. Carnebianca brought a lawsuit against Shen Wei, claiming that Shen Wei infringed the copyright in his artwork, which is characterized by figures that are depicted or carved with an elongated head. According to Mr. Carnebianca, Shen Wei’s performance entitled “Folding” reproduced all the very peculiar elements of Mr. Carnebianca’s artwork, without acknowledging his rights.
More specifically, Mr. Carnabianca claimed that “Folding” was clearly based on his work because the respective artistic works contain many common elements that could not be accidental. Mr. Carnebianca cited several aspects of the Shen Wei performance that allegedly embody distinctive elements of his artwork: the dancers’ bodies hanging in a surreal limbo, the androgynous figures moving in pairs and folding their necks upward in an exasperated manner and, above all, the elongated shape of the dancer’s heads.
Shen Wei responded by arguing that “Folding” was an original work that is different from Mr. Carnebianca’s artwork and refuted the eligibility for copyright of the so-called “distinctive elements” cited by Mr. Carnabianca. In particular, Shen Wei pointed out that the elongated head that Mr. Carnebianca indicated as a characteristic element of his work is, in fact, a standard shape that appears throughout the history of art, and which therefore could not be protected by copyright.
After considering the parties’ arguments, the Judge held that, in general, Mr. Carnebianca’s artwork was eligible for copyright protection. According to Italian law and relevant case-law, to be protected by copyright an artistic work must have creative character, which exists when the input of the author satisfies a certain minimum level of originality. In deciding whether a work has risen to the level of originality as to attach copyright protection, Italian courts deem it sufficient that the work shows the “author’s personality”. Thus, although Mr. Carnebianca’s artwork contains recognizable explicit references to ancient cultures (such as the Egyptian and pre-Columbian civilizations), as well as influences by famous surrealist artists such as Salvador Dalì, the originality of his works was evident.
As far as the alleged infringement was concerned, the Judge noted that Shen Wei’s ballet “Folding” was also a complex and original work of art consisting of many different and creative contributions, including choreography, music, set design, costume design, make-up and lighting.
Indeed, setting aside Mr. Carnebianca’s sculptures and paintings, the Judge stated that a comparison between these two artists might be better served by considering a choreographic work by Mr. Carnebianca which was performed just once during a museum exhibition in 1994. This piece was characterized by a sequence of poses with no fluidity of movement that aimed to reproduce the static nature of the sculptures.
Moving forward, in reaching its decision, the Judge applied the widely accepted principle that one work does not infringe another if the only similar elements between the two are either in the public domain or ineligible for copyright. In other words, anyone is free to copy concepts, ideas, or suggestions described in a work of art, and to express them in his or her own personal way.
Bearing in mind this principle, the Judge carried out a very detailed analysis of the various elements of the respective works that, on the basis of Mr. Carnebianca’s allegations, were capable of amounting to copyright infringement.
With regards to costume design, dance steps, body postures, make-up, background music and the blue-colored scenic setting, the Judge highlighted differences between the respective works, while also noting that many of these elements were not copyrightable because they were generic and formed part of the public domain.
As far as the “infamous” elongated cranial element (which was, in Mr. Carnebianca’s opinion, the most striking evidence of copyright infringement), the Judge maintained that, out of all the aspects subject to analysis, this feature was the only element that appeared to be vaguely similar. However, a more accurate assessment revealed that this similarity was only illusory. The Judge concluded that the works of Mr. Carnebianca and Shen Wei constituted representations of a common source of inspiration that were different, consisting of distinct and original creative expressions of the same common cultural heritage.
Thus, in comparing the respective works of art both considering the works as a whole and as a sum of individual analytic elements, the Judge found that both authors created original and different copyrighted works.
It is interesting to point out that before and throughout the civil proceedings, Mr. Carnebianca also pursued three separate criminal proceedings against Shen Wei for copyright infringement, all of which were dismissed, with one being considered as a basis assessment of the merits of the civil action for infringement.
With regards to damages incurred by Shen Wei, the Judge determined the amount to be compensated by Mr. Carnebianca in 30.000 Euros by evaluating the “fairness” of the situation as a whole, given that it is not possible to quantify loss in terms of damage to a person’s image and honor with precision. In this regard, the Judge took account of various factors: the three criminal proceedings (all dismissed), the offensive means used to serve the writ of summons on Shen Wei and the dissemination of discrediting information by Mr. Carnebianca, who also shared such harmful information Italian and foreign authorities. The Judge found that these activities clearly indicated Mr. Carnebianca’s intent to damage Shen Wei’s reputation. In other words, Mr. Carnebianca far exceeded his right to enforce the copyright in his works, and his behavior amounted to an abuse of right and process which caused damage to the image of Shen Wei.
Following this significant decision in favor of Shen Wei, Mr. Carnebianca did not file appeal, hence the Judge’s ruling became final and binding.