The Court of Turin rules about authorship in copyright: toward protection of advertising ideas through moral rights?

20 Luglio 2015
DIMT

di Francesco Banterle (via Iplens.org)

A recent interim decision of the Court of Turin (full Italian text here) in a copyright dispute faced an interesting issue concerning the concept and scope of right to co-authorship, hence also a moral right pursuant to art. 20 of Italian Copyright law (Law No. 633/1941).

In a nutshell, Mr. Pagani, a former employee of the advertising company Leo Burnet, claimed to be the author of the “creative idea” from which Fiat advertisement “Fiat 500 cult yacht” (which was awarded, among others, the Cannes Lion 2014 at the International Festival of Creativity) was produced. He expressed this idea in a script exposed during a meeting at Leo Burnet. The proposal was discarded by Fiat. Four years later the script was revived and elaborated by two other employees of Leo Burnet to produce the advert Fiat 500 cult yacht. Credits on the advert were then attributed to these two employees.

Taking aside the question whether scripts may be autonomously protected as creative works, the Court of Turin considered that (i) advertisements can be the subject of copyright protection, as works characterized by innovative ideas or new form of expression of previous ideas; (ii) a video advert is a complex work, which includes visual and audio elements; (iii) conception of the advert is a crucial phase within the creative process: the project of the advert constitutes the “synthesis” to be developed during the production of the video; (iv) Mr. Pagani’s script (as mean of expression of the advert idea) included all the main elements that characterize the final advert: the promotional message, its way of expression (i.e., the particular environment, the narrator’s voice, the final advertising claim) and the targeted public.

In light of the above, Mr. Pagani’s script expressed more than a mere idea and contributed decisively to the final advert. Thus, the Court ordered to rectify the credits of the advert including Mr. Pagani among the authors and to notify the interested parties.

This decision is far from granting copyright protection to mere ideas, since protection of Mr. Pagani’s idea was conditioned to (i) the expression on a physical medium (i.e., the script) and (ii) the presence of all the main expressive elements of the final advert. However, it confirms a flexible view in acknowledging (co)authorship to creative contributions of a work (on a similar ground, see Court of Milan 21 October 2003, which considered co-author the scriptwriter who conceived the characters of a comic).