Court of Cassation with sentence n. 13171 of the 24.06.2016 has definitely decided on the case of the slogan “you are, we care” conceived by a professional figure on the commission of an advertising agency and then adopted by Fiat to publicize its own products.
The Court has established three important principles on copyright.
In first place it has believed that the ideation of the slogan constitutes creative work than can be protected by copyright’s law.
The principle is to the origin of a lot of discussions that rise between the buyers and the authors of marks, slogan, that, in absence of a precise accord on the point, they sometimes pretend to be compensated for the use or for the recording of the sign from the buyer himself.
Under this second profile the Court has affirmed another important principle, that in case of contract of work the buyer obtains the rights of economic exploitation of the work created in automatic way, without need that there is a real action of transfer. According to the Court, the art. 110 Ls.To., what it imposes the form written for the actions of transfer of the works protected by copyright,
“it is not applicable when, as in the model fact situation, the buyer has purchased, from original title, rights of economic use of the work, for effect and in execution of a concluded contract (in free form) of performance of intellectual work with the author (see cass. no. 1938 of 1963), coherently with the fact that such contract implies the transfer of the rights of economic exploitation pertinent to its object and to its finalities. In other terms, there has not been a transfer of the rights of economic use of the work in the sense considered by art. 110 cits., but the execution of a contract of professional work that has allowed the work to come to the light, with its originality and safeguard, and to be acquired in the original form to the patrimony of the costumer, which was legitimated to economically use it for the advertising purposes that had been arranged.”
Last aspect dealt with in the decision has been that of the remuneration to the author of the slogan.
On the point the Court has affirmed that “the determination of the remuneration doesn’t constitute essential element of the contract of professional work, since there is not presumption of a fee payment, even juris tantum(v. Cass. no.7741 of 1991, no.10393 of 1994, no.5472 of 1999, no.7003 of 2001, no.2769 of 2024).”
A free contract of performance of work is suitable to transfer all rights