In Italy, as in the rest of continental Europe, copyright is in the first place a “droit d’auteur” i.e. a right which translates into the entitlement of individuals to be credited for the contribution they have made to the creation of protectable works. This is the so-called “moral right” of the author, which, unlike the rights of commercial exploitation, is strictly personal and inalienable.
A recent decision of the Tribunal of Turin (order of 31 March 2015 which can be found here) has shed light on the never ending debate concerning the threshold of creativity that ideas must overstep in order to give rise to such “moral right”. The case was decided on appeal brought in the context of interim proceedings by a former employee (Mr. P.) of the Italian subsidiary of Leo Burnet (LB), a multinational advertising agency. Mr. P. claimed that a recent and successful commercial on Fiat500 (which can be viewed here), produced by LB in the Interest of Fiat, was in its essential features based on a script that Mr. P. had elaborated when working at LB.
The point of law discussed by the court is when a script gives rise to the author’s moral right to be attributed the work’s authorship. The point is all the more relevant, because it was to be decided if the evidence submitted by the claimant would display a creative concept that was, on the one hand, detailed enough to permit third parties to translate it into an audio-visual work and, on the other hand, whether the latter would in essence reproduce the original creative concept. The court found in favour of the claimant on grounds that Mr. P.’s script, although consisting of a few lines of text and of a short presentation summarising the basic idea for the end customer, already contained all the elements that characterise the commercial. In fact the court observed that the commercial, although different from the script in a few ancillary elements, faithfully reproduced the foundational idea of the script, which relied on the association between the car and young and wealthy individuals, a terroir immersed in beautiful natural landscape, the irony of the message conveyed, which at first seems to deprecate the rush to status symbols and then ends up presenting the car as a status symbol itself.
This ruling however does not run counter to the principle that ideas as such cannot be copyrighted, unless they have been fixed in a perceptible format. To this end, the court stressed that Mr. P.’s script was not a formless idea, but instead contained a complete design of the Fiat500 commercial, which in addition was fixed in a tangible support (paper documentation), which Mr. P. left with LB when he left the Company.
This case seems to make good use of legal principles of Italian copyright law and does not really break new ground, although it may be seen to have set a relatively low threshold in defining the level of creativity necessary for moral rights to kick in. As such, it was however very much dictated by the facts of the case, which are quite specific to the advertising industry.