On 23 March 2017, the Italian Supreme Court issued decision no. 7477/2017 in a case concerning the marketing of copies of the well-known Thun statuettes, reiterating the principles governing the copyright protection of industrial design. The decision is in line with the now consistent case-law formed in the last decade, which we have discussed amongst others here and here on this blog.

The Court stated that design products enjoy protection under art. 2 n. 10 Italian Copyright Law (ICL), which protects “the works of industrial design having creative character and artistic value”. Regarding the “creative character” requirement, the Judges recalled that “an artwork receives protection provided that it entails a creative act, albeit minimal: with the consequence that creativity cannot be excluded only because the work consists of simple ideas and notions contained in the intellectual heritage of people with experience in the field“.

As for the artistic value of design works, always the most controversial element in these cases, the Court recalled that it “cannot be excluded by the seriality of the production of the items, which is a connotation of all such works, but is derived from objective and not necessarily concurrent indicators, such as: the recognition of aesthetic and artistic qualities by cultural and institutional environments, the exhibition in shows or museums, the publication in specialised journals, the assignment of awards, the gaining of such a high market value to transcend that linked only to their functionality, or the creation by a well-known artist“. The Court therefore ordered that the Court of Appeal of Venice, to which the case was returned, should decide the merits of the matter by applying these criteria.

Lastly, focusing on an issue that has been seldom debated in recent years (i.e. after the introduction in 2001 of art. 2 no. 10 ICL, which expressly recognised the protection of industrial design), the judgment stated that design products are not protected by art. 2 no. 4 ICL. This provision protects “the works of sculpture, painting, drawing, engraving and similar figurative arts, including the scenography“. According to the Judges, this “can only refer to a creative product realised in a single copy or in a limited number of copies (considering that the interest for the work is stimulated, in the users, by the uniqueness of the creation or the limited quantity of its replicas) and destined for a different market, certainly narrower than that to which the goods of industrial production are addressed. Therefore, the product immediately referring to an economic operator who reproduces it on a large scale, in a standardised way and in a potentially indefinite number of copies, to destine it, directly or indirectly, to a large consumer market, is not a work of figurative art pursuant to art. 2 no. 4.