The protection of intellectual works: the Court of Cassation summarizes the guiding principles in the judgment of plagiarism

The Court of Cassation, by a judgment of 28 January 2018, No. 2039 pronounced on copyright and plagiarism of works of art at the end of a litigation brought by the successors of the painter Emilio Vedova, the well-known exponent of the pictoral and artistic movement known as “Informal art”.

The dispute in question related to the infringement of the rights of the Foundation E. and A. Vedova – in quality of sole heir of the artist – by P. D., the author of the plagiarizing artworks, and by the Art Gallery O., which was sued as jointly and severally liable for having marketed such paintings and which was convicted to the compensation of both material and moral damages suffered by the early plaintiff by a judgment of the Court of Milan, confirmed by a second instance judgement.

The Supreme Court, seised by the Art Gallery, confirmed the judgement of the Court of Appeal of Milan with a ruling which confirms the well-established legal framework for the comparison of two artworks in order to establish the subsistence of plagiarism.

First of all, the Court recalled that the plagiarized artwork shall present a creative act, albeit minimal.

Then the Court reaffirmed that the plagiarism subsists when between the two artworks in comparison occurs an identity of expression, “meant as a form by which the content of the intellectual work expresses”, bearing in mind that the Copyright law doesn’t protect the idea in itself, which can be reproduced by a third party as the outcome of an independent intellectual activity, without setting up a case of plagiarism.

Therefore, the plagiarizing work, for being considered such, should be devoid of a “semantic gap” compared to the plagiarized artwork, from which it borrowed the “individualizing or creative nucleus” “slavishly tracing what others developed and expressed in a determined and identifiable form”.

In such circumstances, the Supreme Court observed that such assessment shall be brought on the basis of the detection of the differences from the essential characteristics, as the result of an overall and concise assessment which shall be made during a trial by a technical consultancy.

The Court of Cassation deemed that the Court of Appeals of Milan had correctly applied the abovementioned principles, finding the grounds of plagiarism since the work of the P.D. “was almost completely identifiable” as the work of Vedova “with a wide description of the sameness of the grounds’ position, of  the chromatic masses, of the proportions” and saying that “the minimal differences found (…) are simplifying or commercial”.

Finally, on the liability ground, the Court of Cassation reminded that not only the actual author of the plagiarized work but also all those who contributed to the marketing of that work in their entrepreneurial activity are jointly and severally responsible for the plagiarism.

Therefore, according to the Court of Cassation in this particular case the Court of Appeals has correctly judged the Art Gallery responsible for its guilt, “since it is up to the qualified diligence, as per art. 1176 c.c., falling on the experts of the art market, to verify that the work on the market are not plagiarized”.

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