The Court of Cassation (ruling no. 24062 of 12.10.2017) held that even a simple advertising spot can amount to a work protected by copyright and as such be protected.
The advertising slogan that is the subject of ruling was indeed quite original. It was the image of a person whose head had a series of objects sticking out of it, hence the motto «Want to do it your way? DIY is for you».
The ruling deals with two issues, both significant with regard to the delicate topic of relationships between the client and the author of a work of art.
The point concerns in fact the protection that can be granted to this type of message and seems to share what was already held by the Court of Appeal, i.e. that the message could be fully protected.
The Court does not enter into the merits of the actual ruling on this point as this assessment is left to the judges of merit, but it states that the challenged ruling has no grounds for contradiction and that the Court refers to the principle that
«creativity and originality exist even when the work is composed of simple ideas and notions, included in the intellectual heritage of people having experience in the subject matter of the work itself, provided that they are formulated and organized in a personal and autonomous way compared to the previous ones».
Therefore, the above requirements appear to be present in the case-in-point.
Another significant aspect concerns the relationships between the client and the advertising agency.
In this case the advertising message had been commissioned to an agency that had created it and had received a fee for its work.
The parties, however, had not enterered into any contract that specified the rights ensuing therefrom, even if in a quote it was added that the advertising spot could also be used for other advertising media.
On the basis of the aforesaid estimate, the client believed he was fully entitled to use the advertising spot produced under the contract for further and different purposes than those originally envisaged.
On this point the Court of Cassation was instead adamant in denying this possibility. The Court, in fact, ruled that the transfer should have been expressly agreed and remunerated, besides being noted in a written deed pursuant to art. 110 L.A.:
«Suffice it to note, in this respect, that the Territorial Court remarked that the documents of the case-file showed that no fee had been agreed upon for the transfer, by PAC, of the right to exploit the creative idea, once the agency relationship terminated and that, therefore, the envisaged fees remunerated the professional activity provided by PAC without waving any of its rights to the object of its creation; it is further added that the transfer of a copyright must be in writing and, in this case, the assignment of the copyright was not in writing.»
Once again, the ruling underlines the importance of drawing up written agreements with advertising agencies, but also with graphic designers and all creative people so as to clarify from the very start the subjects entitled to the rights associated with the work created, even if executed as part of a works contract.