Elena Martini and Laura Spagnoli

With decision no. 18220/2019, the Italian Supreme Court ruled on the violation of the author’s right of paternity due to the failure to mention their name in the publication of their work by third parties.

The ruling originates from a dispute that arose between an illustrator and a publishing company. The former depicted for the latter some illustrations for a medical encyclopedia, assigning the exclusive rights of the commercial use of his illustrations to the company, but contractually providing for the publisher’s obligation to always display his name when using the figures. However, the encyclopedia was subsequently published and distributed (in tomes that were sold separately) without any mention of the illustrator’s name, which appeared only in the fifteenth volume. The illustrator therefore acted before the Court of Rome stating that this constituted a violation of both the commitments that were contractually undertaken by the publisher and of his own moral right under Article 20.1 Italian Copyright Law (ICL), according to which “Regardless of the exclusive rights of the commercial use of the work …, and even after the transfer of the same, the author retains the right to claim the authorship of the work (…)“.

Both the Court of Rome and the Rome Court of Appeal only partially granted the illustrator’s claims, stating that the failure to mention his name constituted a breach of contract by the publisher, but not a violation of the author’s moral rights pursuant to art. 20 ICL, since the violation of this provision would only exist in the presence of an explicit denial of paternity through the attribution of the work to others, that was not the case here.

With regards to the decision in question, the Supreme Court instead granted the illustrator’s further appeal, recalling that the author’s moral rights protect the personality of the author and contribute to the protection of wider rights of constitutional importance such as identity, honour, personal reputation and social prestige. In other words, the authors’ moral rights protect the non-economic reward that consists of being recognised by the public as the person who created the work itself with their creative and original contribution. In line with this rationale, and with a good part of our IP Courts’ case law (see for example the decision commented here on this blog), the Supreme Court therefore concluded that, in order for the author’s paternity right to be considered violated, failure to indicate the author’s name is sufficient, independent of whether this is accompanied or not by simultaneously attributing the same work to others.