Photography and fashion. Clovers obtains a favorable ruling from the Court of Milan on the unauthorized use of a photograph on a fashion collection.

Gianpaolo Todisco – Partner

Laura Bussoli - Associate

One of the gaments of the collection.

Last week the Court of Milan sentenced the company founded by stylist Antonio Marras to pay damages to the American photographer, Daniel J. Cox, for the unauthorized reproduction of a photograph of the latter on clothing.

Daniel J Cox is one of the most successful nature photographers and author of several covers of National Geographic magazine and he know as being the author of a monographic book dedicated to wolves.

The controversy arose when Fashion designer Antonio Marras used this image without the author's consent to develop its fashion collection.

The image was reproduced on a series of women's garments and presented during the woman’s 2014-2015 F/W fashion show in Milan and the collection was distributed and marketed worldwide.

After the parties unsuccessfully completed negotiations aimed at settling the case, the photographer invoked injunctive relief against unauthorized use of the image as well as compensation for damages quantified at the request of the same in the so-called price of consent.

The Court ruled that the image printed on several garments created by Marras coincided with the photograph shot by the plaintiff and met the requirements of the artistic and creative character necessary to access the "enhanced" protection provided by the Copyright Law.

Indeed, Italian copyright law grants photographs a dual level of protection, distinguishing between photographic works (or artistic photographs) and simple photographs.

The orginal photograph. Copyright Daniel J. Cox. - Natural Exposures. All rights reserved.

The difference - which is not always easy in practice - is traced by art. 87 of Italian Copyright Law which define as simple photographs "images of people or aspects, elements or facts of natural and social life, obtained by photographic or similar process, including reproductions of works of figurative art and film stills" and recognize the same protection as neighboring right.

 Conversely, there is no explicit legislative definition of an artistic photographic work  in the Copyright Law and this is left to a “case by case” "practical" evaluation by judges on the basis of a series of indexes.

Artistic photographs are treated like other artistic works have access full protection (up to 70 after the death of their author), whereas simple photographs, on the other hand, enjoy limited protection (20 years from the date of photograph’s production) and the photographer is only entitled to fair compensation in case of unlawful use.

A first and fundamental point of the decision rendered in the Cox/Marras case, concerns the recognition of the artistic value of photography: in the Court’s opinion the artistic value lies "in the creative capacity of the author, i.e. in his personal imprint, in the choice of the subject to be portrayed as well as in the moment of realization and reworking of the shot, such as to arouse suggestions that transcend the common aspect of the reality represented.

The choice to portray the animal in its natural environment and in adverse climatic conditions makes the shot "the result of study and careful photographic analysis by the author" and contributes to the recognition of its artistic value according to the Court.

It is also the technique that comes in this case in relief in order to correctly frame the image within the protected and protectable photographic works: "a wise blurring of the surrounding environment, thus enhancing the expression of the represented subject ... and evoking, in this way, peculiar suggestions in the observer such as to go beyond the mere graphic representation of the animal (...) "a wise use of chiaroscuro and the use, with creative purposes, of light ". Last, the specific authoritative recognition of the artist in the United States and the publishing of the photograph in a monographic work also helped the Court understand the nature of the work.

Therefore, once the artistic nature of the work has been ascertained, the use by the defendant company for commercial purposes of the photograph, by placing it on an item of clothing included in the women's collection, in the absence of any authorization from the author, "constitutes an open violation of the author's right to compensation for damages".

It is interesting to note that the Court of Milan rejected the defendant's objections to the alleged lawfulness of the use of the photograph, since the same can be found on the Google search engine.

The Court found that - "the mere availability on the web of a photograph certainly does not constitute a presumption of absence of authoritative rights, on the contrary, the burden of ascertaining whether or not third parties have rights".

In conclusion, the Court stated that the work of the photographer Daniel J. Cox should be considered to be protected by copyright law, as a creative work in the particular field of photography, ordering the defendants, jointly and severally, to pay damages to the applicant and ordering the publication of the operative part of the judgment by and at the expense of the defendants in the periodical Vanity Fair.

Through this judgment, the Court of Milan has analyzed several legal issues which are constantly being debated experts in the world of intellectual property.

Human Feelings as Drugs. The Court of Appeal of Milan overturns the decision.

Recently the Court of Appeal overturned a judgment rendered in September 2018 by the Court of Milan, which we discussed in this blog

The case was inspired by the alleged violation of copyright of a photograph entitled "Human Feelings as Drugs", consisting in the creation of photographs, prints and posters reproducing vials of medicines of various colors, bearing the words "empathy", "hope", "love", "peace" and "joy" with the expressive phrases of the related feeling or emotion. Artist Valerio Loi intended to realize the idea of taking "feelings like medicine", so as to "allow the patient an instantaneous awakening of perception and a reintegration within the vital flow of emotions".

The plaintiff complained about the illegal reproduction by defendant, Queriot de la Bougainville of a series of pendants - combined with necklaces and bracelets - that would have reproduced their own vials, with identical names of feelings, accompanied by the same illustrative sentences. He therefore invoked injunctive relief, damages and publication of the judgment. The Court of First Instance had reiterated that with regard to photographic works, the artistic character presupposes the existence of a creative act as the expression of an intellectual activity which takes precedence over mere material technique.

That is to say, the photographer's method of reproduction must convey a message which is additional and different from the crystallized objective representation, that is to say, it must be a subjective interpretation capable of distinguishing a work from similar works having the same subject matter.

According to case Law, the requirement of creativity of the photographic work exists whenever the author has not limited himself to a reproduction of reality, but has inserted in the shot his fantasy, his taste, his sensitivity, so as to transmit his emotions. As far as photographic works are concerned, the artistic nature of the reproduction cannot be deduced from the notoriety of the subject or object that is portrayed, since the value of the artistic work is appreciated by virtue of formal canons - which express the author's personality in an absolutely characteristic and individualizing way - since the relative judgement must be made regardless of the object or subject itself reproduced.

The Court of first instance had excluded the artistic nature of the litigious images, since it was impossible to recognize precisely those aspects of originality and creativity that are indispensable to recognize the full protection under Italian Copyright Law. According to the Court, the plaintiff did not indicate precise shots or a careful selection of lights or particular dosages of light and dark tones that the Court could appreciate. Nor did the photograph highlight a personal and peculiar imprint of the photographer.

In overturning the decision, the Court of Appeal of Milan, held that: "the presence of the creative or non-creative character in the photographic work must be verified, assessing unitarily the subject, reproduced in the photograph, and the photographic modalities with which the subject was rendered, given that the emotional suggestion of the photographic work derives precisely from the close connection existing between the subject photographed, obviously three-dimensional, and the particular modalities with which the same is rendered in the two-dimensional photographic image. On the other hand, the creativity, suitable to give the photographic work artistic value, on the one hand, does not coincide with the concept of creation, originality and absolute novelty, but refers to the personal and individual expression of an objectivity, belonging to the categories listed in the Italian copyright Law, so that the existence of a creative act, even a minimal one, is sufficient, on the other hand, is not constituted by the idea itself, but by the form of its expression, that is to say by the way in which the idea is concretized in the external world [...]" and that therefore "There is no doubt that the photographic work in question presents a relevant rate of creativity [...]".

In conclusion, the Court decided that Valerio Loi's work 'Human Feelings as Drugs' should be considered to be protected by copyright law as a creative photographic work.

FERRARI 250 GTO IS A WORK OF ART PROTECTED BY COPYRIGHT .

The Court of Bologna, Section specialized in business matters, has recently added the protection of copyright to the model of Ferrari, perhaps the best known and most appreciated ever: the 250 GTO.

The number, 250, stands for the displacement of each cylinder in cubic centimetres of the V12 3000 cc engine displacement. GTO stands for "Gran Turismo Omologata". This acronym will not be used for several years until the presentation in 1984 of the Ferrari 288 GTO.

According to the Court, "the personalization of the lines and aesthetic elements have made the Ferrari 250GTO a unique example of its kind, a true automotive icon". "Its artistic value has found objective and generalized recognition in numerous awards and official certificates", in "copious publications" and in the "artistic" reproduction on coins and in the form of "sculptures", periodically exhibited in museums.

The Court has thus issued an order prohibiting the defendant to reproduce the form of the 250 GTO in rendering and in car models.

The resistant company was in fact ready to launch on the market a dozen replicas of the 250 GTO, at a price of about 1 million euros each, which reproduced the legendary model of the '60s.

The Point on the EU's Copyright Reform

The European Union is working on reforming the copyright by forcing websites to enable “upload filters” and to pay for linking to other websites.

One of the biggest issues with the new EU copyright reform proposal is the Article 13, which mandates that websites that accept user content (anything from videos to online comments) must have an “upload filter” that would block all copyrighted content that's uploaded by users. Critics, such as Member of the European Parliament (MEP) Julia Reda, have also called upload filters “censorship machines.”

Under the censorship machine proposal, companies would be required to get a license for any copyrighted content that is uploaded to their site by its users. In other words, websites would be liable for any content their users upload to the site.

Some argue that upload filters wouldn’t be able to recognize “legal uses” of copyrighted content, even if they were 100% effective in identifying whether or not a piece of content is copyrighted or not. In this category would enter parodies and citations, which typically make references to licit copyrighted content.

It is disputed if uploading filters is legal or if it violates fundamental rights to privacy, freedom of expression, freedom of information and freedom to conduct a business.

Another article under dispute is the so called “link tax” proposal in Article 11 of the copyright reform directive is another idea that’s not just seemingly bad, but it has also failed in countries such as Spain and Germany, where it has already been attempted. Instead of getting companies such as Google or other publishers to pay for the links, or article excerpts and previews, those companies simply stopped linking to content coming from Germany and Spain.

Critics believe that a link tax would significantly reduce the number of hyperlinks we see on the web, which means websites will be much less connected to each other.

These two articles seem to be the most controversial by far and critics believe that the directive would probably have a negative impact on companies

THE PROTECTION OF BIOGRAPHICAL WORKS

Can we freely write, publish or tell the lives of famous people?

On this point the Court of Milan (IP Section) recently rendered a descision to settle a dispute between two authors (Antonio Prestigiacomo and Marcello Sorgi) on the life of the Sicilian Prince Raimondo Lanza di Trabia, the man who invented the soccer transfer market and who was Rita Hayworth's lover and a close friend of Onassis.

The Court ruled that in the case of biographical works of well-known personalities, the facts and events that affected them belong to the common patrimony and are not autonomously monopolizable by anyone. Copyright protection protects instead the formal choices, the stylistic and editorial techniques, created by an author.

The Court ruled that the text of plaintiff Antonio Prestigiacomo, "The Restless Prince. The life of Raimondo Lanza di Trabia "undoubtedly enjoys copyright protection both in terms of originality and novelty. As for the originality, Prestigiacomo’s Book is in fact configured as the personal result of the harmonization of real facts, also historical, and true facts, organized and stylistically reworked with a particular technique. The text is in fact the fruit of the alternation, in the narrative fabric, of interviews articulated in questions and answers, clearly identifiable by the presence of the quotation marks, made by the author to various characters who have had direct knowledge of the Prince.

However, the Court ruled that with respect to the identity of the main character and of many events narrated, there is a certain distance between the two stories, so to believe that they are autonomous creative works, belonging to different genres, each individually protected.

The work of Prestigiacomo cannnot in the end be considered plagiarized by that of Marcello Sorgi and that the biographical works of well-known personalities, but not with reference to the facts and the events that concerned them,are not monopolizable.

The Shape of Water accused of Plagiarism.

As the Academy Awards night apporaches, controversy grows around the films selected by the Jury.

"The shape of water", the film by Guillermo del Toro, nominated for 13 Academy Awards, is accused of plagiarism: the film would be based on the 1969 play 'Let Me Hear You Whisper' of the Pulitzer Prize Paul Zindel . The legal action against the film's director, producer and movie house was presented by David Zindel, the son and heir of the famous playwright, who blames them for not having "shamelessly copied the story, the elements and the characters" of his father's comedy, even using the same words.

 The word is now up to the Court, called to determine whether Zindel's allegations are founded. However, it is not the first time in Hollywood that there have been battles on accusations of plagiarism, especially in the presence of films of expected success.

The classic Western by Sergio Leone For a handful of dollars is one of the peaks of its kind, thanks to the incredible performance of Clint Eastwood, a tramp gunner who, during his wanderings, ends up in the middle of a conflict between two families in a small village on the border with Mexico. Unfortunately, the film is also an unauthorized remake of a film by Akira Kurosawa entitled Yojimbo. Kurosawa sent Leone a letter saying "Nice movie, but it was my Movie", and sued him asking for a percentage of the proceeds. The two agreed for a reimbursement of 100 thousand dollars and 15% of profits worldwide.

Another striking case was that of Terminator. Harlan Ellison is one of the most litigious authors in the American science fiction world, and there are now dozens of lawsuits against people accused of stealing his ideas. However, the lawsuit he filed against James Cameron for The Terminator was slightly different. Ellison wrote an episode of Beyond the Limits called Demon With a Glass Hand, which told the story of a robot soldier who, disguised as a human, is sent back in time. Orion Pictures decided to pay compensation before the case arrived in court, and Ellison earned money and was credited to the film.

Last we hanve to mention the case of "Coming to America” a movie starrign Eddie Murphy.

In 1982, the well-known screenwriter Art Buchwald wrote a treatment for Paramount entitled King for a day, in which the protagonist was a rich and arrogant African ruler who traveled to America. The protagonist should have been Eddie Murphy. Paramount bought the treatment and spent a few years in a vain attempt to find someone who wrote the screenplay before leaving the project in 1985. The rights returned to Buchwald, which sold them to Warner Brothers. Later Paramount made a film with Eddie Murphy who played the part of a rich and ignorant African ruler traveling to the United States. The film was titled The Prince Looking Wife. Buchwald was neither paid nor credited, so he sued but Paramount agreed privately with him for an unknown figure.

Wild Selfie

A US court has recently put an end to the legal battle over Naruto’s selfie, the Indonesian macaque which became famous for his selfie. The Court's ruling was in favour of Mr. Slater, the owner of the camera, and rejected the claims of PETA, a US non-profit organization, which supported for the monkey’s rights.

The bizarre case in 2011, when David Slater, a professional photographer, was travelling in the Indonesian wild forest to capture with his camera some of the most spectacular animal species. Slater bumped into a group of monkeys and left his camera unattended for a few moments when a photogenic macaque, Naruto, grabbed his camera and began to shoot hundreds of selfies. Some of these, as well as those of the best instagrammer, were moved and blurred, others, instead, were almost perfect. The photographer published one of the photos on his blog and immediately the image became viral. Based on a literal interpretation of American copyright law, Wikimedia, the American-owner company of the Wikipedia domain, decided to include the image in its collection of Wikimedia Commons content, a collection of over 20,000 public images and videos that can be used by the community as they are unaffected by copyrights. According to American law, the rights upon a photo are owned by its author, which is the person who took the photo and, in this case, it was a monkey. Salter opposed the free disclosure of the image he considered to be his own and he gave rise to a legal dispute over intellectual property: if a monkey takes a photo, whose is it?

Over the years, the issue has become increasingly complicated and increasingly absurd: PETA, already known for its provocative battles, filed a lawsuit in the name of Naruto, Slater and also Blurb, a publishing house that published the Wildlife Personalities book, containing many animal pictures, including Naruto’s one.
Both Slater and Blurb presented a "motion for dismissal": a document used in the US legal system in order to explaining that the case against someone is wrong and based on non-existent reason. In this document, Slater wrote, among other things, that "the only relevant fact in this case is that the plaintiff is a monkey that sue for copyright infringement." According to Salter, PETA can not prove that the famous selfie was shot by Naruto and not by another monkey.
And in fact, the judges agreed with him, ruling that he has, and the monkeys cannot own any copyright over a selfie.
Despite this, PETA and David Slater have reach an agreement: the photographer will pay 25% of the revenue generated by his copyright to the non-profit organization.
 

Facebook's Copyright Infringement case continues in front of the Court of Milan

The case between Facebook and Faround will be heard in front of the Milan Court of Appeal on April 4. In the first degree Facebook was sentenced for the first time for unfair competition and copyright violations against Faround, a software application created in 2012  by the Milan-based company Business Competence.

On the first instance the Milan’s Court, had held that Facebook’s application Nearby was infringing Fararound’s electronic database which is protected under Italian Law.
Faround selects data on Facebook, through the profiles of registered users, and organizes and display them on an interactive map. The map then shows shops near to the user's position, also with relatives reviews and information on discounts and offers. Indeed this information is not owned by Faround. However the Court held that the mode of their organization holds a degree of originality which should be granted copyright protection. In fact, "the previous programs developed by Facebook (Facebook Places) and by third parties (Foursquare and Yelp) did not have the same capabilities as Faround: the first was a kind of pager to reach friends and not a geolocation of shops close to the user, while others were designed on the basis of logical algorithms working on the base of data entry provided by members of their social networks, and not Facebook’s.”
For these reasons, the Business Competence Srl accused and sued Facebook for infringing the application’s concept and format, launched with the name of Nearby. In addition, Nearby attracted professional advertisers, perpetrating unfair practices on the advertising market.

The Court of Milan, found that the two applications had the same functionalities and overlapped and ruled for the publication of the decision on the newspapers "Corriere della Sera" and "Il Sole 24 Ore" and, for at least fifteen days, on home page of facebook.com. The Court also banned any further use of Nearby in Italy, placing a fine of 45 thousand euro for each day of violation of its order . Facebook has appealed the decision in front of the Appeal  Court of Milan, which, at the moment, has rejected the suspension request of the provisional measures imposed at first instance.
 

How is Blockchain Technology going to change the Legal Industry?

Blockchain is a public ledger which can be applied to almost anything that you would normally save to a database or spreadsheet.

Fundamentally, blockchain is a program from which to build a system of accounting or process. One network called Ethereum, which has been described as a “decentralized virtual machine that can execute peer-to-peer contracts” is leading the charge with smart contracts and the law.

Creation of contracts

The blockchain could alter the landscape of contract attorneys. Part of what makes the blockchain so special is that not only does it keep records which are immutable, it also creates a process around that.

For example, I could create a contract which stipulates that when my patent was approved by the Patent and Trademark Office (PTO), my four partners would receive a 10 percent share in my company. How would that work? The contract on the blockchain would check to see if the patent was approved, then trigger a process releasing the shares to the partners.

All of this would be automated and fall outside of human legal action. Indeed, you could go one step further and tie in a payment system so that when that patent was granted, bonus funds could be dispersed automatically into the accounts of said partners.

Intellectual property

If blockchain is ripe for anything, it is IP. This technology creates a publicly accessible, indisputable ledger of each filing which could be held not solely by jurisdiction but on a global scale benefiting everyone.

This information would offer clean and clear rights of use for all parties. You could even submit your trademark through the system. Leveraging an algorithm identifying any likeness to the trademark, the system could then grant or dismiss it. All of which would become part of the public ledger for anyone to review.

Land registry

Wealth is created through ownership, and one of the most challenging aspects of developing countries is determining who owns a piece of land. Disputes often occur because of corrupt governments or individuals taking advantage of the under-educated.

Having a public blockchain ledger would allow for everyone to be aware of who owns which parcel of land; and it would make the exchange of those plots much easier and more equitable.

If a family were to buy a plot of land that could be registered on the legal blockchain, it would be much more verifiable than even perhaps government records. All parties would be able to authenticate this as compared to one entity (the government) holding onto all the records. This process would even create a better base for the government to fairly tax individuals and businesses.

Some Latin American countries are beginning to use blockchain as a means to keep track of who owns which land deeds.

Establishing records

In some African countries they are looking at using blockchain technology to keep census information. Voter records could also be added to this process as a means to have a central repository of eligible citizens. In this area, which is currently under development, blockchain seems primed for tremendous growth.

Financial service industry

The banking industry also is jumping into this arena. The theory is that our stock exchanges will become blockchain-enabled. The idea is simply that every stock bought or sold would be on the ledger. You could trace back your own ownership of that equity and even tie that to your estate-planning documents.

Extrapolating this out, those documents also could be housed on a blockchain with respective triggers for when you eventually die. Ultimately that information is then released to your beneficiaries based on that event (Date of Death) recording by the Social Security Administration (SSA).

Do you use Instagram?

Instagram, like many other image-sharing platforms, needs you to grant them the right to display your images, or else they would be violating your copyright by displaying your pictures in the app. Obvious? Maybe, but there’s more to it…

1.    You grant them a License

Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels…

Does this mean you still own your pictures? Well, yes, but they can use it whenever they want. At the moment, they only use user pictures in seemingly harmless instances like blog posts and whatnot, so it may be true that the chances of Instagram exploiting user content for profit aren’t that high. That clause, however, is still there. Not to mention that if you’re on Instagram, you already agreed to it.

2.    Not unless your account is set to ‘Private’

…except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. 
Great! But what if you use Instagram to gain followers? 

3.    Reps and warranties…

You represent and warrant that: (i) you own the Content posted by you on or through the Instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, and (iii) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, DO NOT TAKE ANY PICTURE FROM THE INTERNET AND POST IT IN YOUR INSTAGRAM. 

4.    You wanna read the last sentence in that quote again? Ouch.

You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services.

In other words, the people over at Instagram have their backs covered. They won’t waste a penny if you get in trouble. This is why you don’t want to get sued (other than, well, obvious reasons). If the entity that sues you decides to include Instagram in the lawsuit (which they probably will since it was their service you used), it is my understanding from this clause that you could end up paying for your lawyer AND Instagram’s lawyer. That is, in addition to any damages you owe for copyright infringement, should you be found guilty. Ouch? OUCH.

By the way… Instagram is awesome, though, check it out if you haven’t done so already.

Why Shutting down Pirate Sites is ineffective.

A few years ago Europe witnessed the largest piracy-related busts in history with the raid of the popular movie streaming portal Kino.to.
Police officers in Germany, Spain, France and the Netherlands raided several residential addresses, data centers and arrested more than a dozen individuals connected to the site.
The operation wiped out the largest unauthorized streaming portal in Europe and was praised as a massive success. However, new research from the European Commission’s Joint Research Centre shows that the effect on end users was short-lived and relatively limited.
In a working paper titled “Online Copyright Enforcement, Consumer Behavior, and Market Structure” researchers examined clickstream data for a set of 5,000 German Internet users to see how their legal and illegal consumption habits changed in response to the shutdown.
One of the main conclusions is that the kino.to raid led to a short-lived decrease in piracy, after which piracy levels returned to normal. At the same time, the researchers observed only a small increase in the use of legal services.
It appears that while users of kino.to decreased their levels of piracy consumption by 30% during the four weeks following the intervention, their consumption through licensed movie platforms increased by only 2.5%,” the paper reads.
Based on the above the researchers conclude that if the costs of the raids and prosecution are factored in, the shutdown probably had no positive effect.
One of the policy implications could be to advise against these type of large piracy raids, as they do very little to solve the problem at hand.
However, the researchers note that the results should be interpreted with caution. For example, it doesn’t include any data on offline sales. Similarly, back in 2011 there were relatively few legal options available, so the effects may be different now.
That said, the current findings shed an interesting light on the limited effectiveness of international law enforcement actions directed at piracy sites.

Copyright enforcement for graffiti?

If it sounds novel to apply copyright to graffiti art, that’s because it is: lawyers who work in this area say it’s not clear anyone has ever tried this in court. Copyright law could be extend to art that's on public walls? It very well may. Anasagasti, a rising star in Miami’s art scene, was the first graffiti artist to seek protection for his work: he hired a lawyer and filed a copyright infringement accusing American Eagle of stealing his work and looking for monetary damages.

Later, a large number of other artists filed suits against various corporations for copyright infringement. One was against the Italian fashion designer Roberto Cavalli for creating clothing, bags, and shoes that supposedly misappropriated a San Francisco street mural as its background print. All the artists claim their artwork was created legally and registered for copyright. Actually in the United States the requirements to obtain copyright for visual art are very low, there are only two requirements for an artwork to be eligible for copyright: it must be secured in a fixed medium and it must be original.
The lawsuits affirm that corporations have gone beyond any exception, putting the street art to use for their own commercial purposes. As Anasagasti’s suit argues, “In today’s fashion industry, affiliation with artists bearing such ‘street credibility’ is highly required by retail brands for the cultural reputation and access to the profitable youth demographic that it offers.”

How much is that street credibility worth? Both lawsuits spread some light on how could this value be measured. In Anasagasti vs. American Eagle as well as in the San Francisco artists suing Roberto Cavalli the value has been determined on sales data, including its software that tracks exactly how many customers viewed the ads and subsequently made purchases.
It’s not clear why the defendants wouldn’t have reached out to ask the artists for permission to use their work. They must have just thought that urban artists aren’t organized and aren’t going to think about copyright protection.

Nothing could be more antithetical from the “street culture” than luxury and glamour.

Seeking copyright protection may sound like the latest evolution of street art away from its outsider origins, but street artists have always pretended greater control over their work. Street artists don’t earn easily with their works, if corporations take advantages of their works, they deserve to be paid. If somebody's going to profit from this art, copyright may be just the instrument for ensuring that somebody is the artists themselves.

By Francesca Filipo

How are Moral Rights treated under Italian Copyright Law?

As other civil law countries, Italian Law recognizes moral rights under the current copyright legislation.

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion, or mutilation.

All these rights can be retained by the copyright holder regardless of the status of the economic rights.

In Italy, it is not possible for authors to assign or even waive their moral rights. This is following a tradition in European copyright itself, which is not regarded as an item of property which can be sold, but only licensed.

The purpose of the law is to protect the moral personality of the author as manifested in his work, provided it falls within what may be the subject of protection.

Italian Law places no time limit for claiming Moral rights; at the author's death the moral right may be claimed by his spouse and children and, in their absence, by parents and other ascendants. Each one of these can act without the consent of the other.

Moral right are inalienable and cannot be traded in any form.

What is the Artist's Resale Right?

The artist's resale right an “inalienable” right granted, in some jurisdictions,  to artists or their heirs to receive a compensation on the resale of their works of art. This right is often known by its French name droit de suite.

The directive 2001/84/EC of the European Parliament creates a right under European Union law for artists to receive royalties on their works when these are resold.  Member States may set a minimum sale price below which the artist's resale right will not apply: this threshold may not be more than 3,000 euros or 10,000 euros where the seller acquired the work of art directly from the artist less than three years before the resale.

The Artist’s Resale Right applies to the sale of artworks in the European Economic Area (EEA).  Artists who are nationals of these countries are therefore generally eligible to receive resale royalties.

Eleven European Union countries currently recognize “droit de suite” in their legislation. United Kingdom, Ireland, Austria and the Netherlands being still an exception. Of the eleven countries which recognize this right, only eight actually do collect the royalty.

The law applies to all “works of graphic and plastic arts”. Works of art must be original and the criteria for the original status of engravings, prints and lithographs are defined in agreements between the authors’ societies and auctioneers.

In Italy this right is granted to artists and their heirs for seventy years after his death on the occasion of transactions of works of art or manuscripts in which intervenes a professional art market. In particular, are subject to “droit de suite” all acts of resale, if they involve vendors, buyers or intermediaries represented by art market professionals, such as salesrooms, art galleries and art dealers in general, with the exception of sales between private individuals. The sales must be reported, by the professional acted as the seller or buyer broker, by declaration to the SIAE, within the period of ninety days from the sale. , the submission of the sale proceeds and compensation for all subsequent sales, are entirely charged to the seller.

The organization in charge of collecting the right below on behalf of all the artists is the SIAE, which currently governs the rights of authors affiliated companies, in which the royalty is already in force.

The compensation is calculated on the sale price, net of tax, on a percentage basis differentiated in relation to the different echelons, are calculated as follows:

•4% for the portion of the sale price up to  50,000.00 euros; (*)

•3% for the portion of the sale price of between 50,000.01 and 200,000.00 euros;

•1% for the portion of the sale price of between 200,000.01 and 350,000.00 euros;

•0.5% for the portion of the sale price of between 350.000,01 and 500,000.00 euros;

•0.25% for the portion of the sale price exceeding 500,000.00 euros.

The total amount of compensation cannot be still greater than 12,500.00 euros.

The SIAE, appointed in Italy to collect payments on the resale right for the artists, published in the Official Gazette a large list of authors whose works have been the subject of a sale which led to the maturation of the resale right, for which, however, has not yet been claimed that right. The gap between the real amount of droit de suite percentage on the sales and the amounts duly paid to the artists and their heirs shows how difficult is to effectively implement this European principle. 

By Francesca Filipo

The Battle over the Next Great Disruptive Technology

By Francesca Filipo and Martina Clochiatti

A 3D printer turns a blueprint into a physical object, built up layer by layer with a computer aided design program (CAD) simply running on your desktop computer.

Since 3D printers turned 3D printing professional services into low cost and on demand facilities, a wide range of products can be easily designed and manufactured at home. Any type of design can be found on the net where 3D printing communities share their files. No matter how it is created, once the CAD design exists it can be widely distributed just like any other computer file.

In many ways today’s 3D printing community resembles the open source community of the early 1990s. There is no central institution giving directions: users themselves invest time and thought in the evolutionary process. They are a relatively small, technically proficient group sharing their creations.

Popular websites like thingverse.com or shapeways.com where anyone may upload and download the design of a number of items were immediately facing IP rights infringement claims.

Recently, Moulinsart, which owns the rights to the cartoon Tintin, served Thingiverse with a Millennium Digital Copyright Act takedown notice. Thingiverse has been forced to remove a design individually developed by an user and freely inspired to Tintin character.

The same happened for the famous Star Wars Yoda character that, despite being turned into different objects, still represents a copyright infringement. The bust of Yoda is not something that you can duplicate or re-elaborate: “Even when designers take an object like that and change it, it's still legally protected”, as Disney legal team said.

Copyright, designs, patents and registered trademarks are the four IP classes that may be infringed by using a 3D printer. Many of these issues have already been discussed with regard to file-shared music and movies. Although 3D printing of copyrighted objects at home may constitute an infringement, the copyright will become increasingly impractical or impossible to enforce.

Technically, a consumer who copies a work by printing an already existing object will be liable for copyright infringement unless the consumer has permission from the copyright owner or only privately uses the printed object.

In this context the majors industries are trying to fight back the new digital era developments by strengthening IP rights, however it is undeniable that at some point a compromise will be necessary.

Creative Commons : Ideas Worth Spreading.

An inflexible copyright policy that prevents any type of disclosure could be anachronistic in the digital era. To realize the full potential of the Internet, encouraging a spreading creativity, many possibilities have been thought. Many of them have been just utopian, but one of these showed a revolutionary potential.

That’s the so called “Creative Commons”.

Launched in 2001 by Lawrence Lessig, Professor of Law at Harvard Law School and one of the leading experts of Copyright Law, this project achieved a large success and a wide application in the recent years.

Creative Commons licenses are not against copyright, instead they depend on the existence of copyright. These licenses are legal tools that creators and other rights holders can choose to offer certain usage rights to the public, while reserving some other rights.

Those who want to make their work available to the public for limited uses while preserving their copyright may want to consider using CC licenses. Others who want to reserve all of their rights under copyright law wouldn’t choose to use it. Creative Commons licenses offer creators a wide spectrum of choices between keeping all rights and renouncing all rights (public domain), an approach that we call "Some Rights Reserved."

Creators can choose among different protection regimes. While some of them refrain commercial uses or the sharing of adaptations, others grant just a minimum protection consisting in the paternity right.  The author doesn’t need any authorization or permission before licensing his work under CC, he just has to decide which conditions he wants to apply to his work. Accordingly, each work will be shared with a different disclaimer, an user friendly detailed tag.

Creative Commons is not an alternative to collecting societies, but a no-profit organization. Therefore all licenses can be use for free with any authorization requirements.

In Italy  Creative Commons could be perceived as an obstacle as it could be interpreted as incompatible with the authority granted by the Italian Copyright Law of 1942 to SIAE, the legal monopolistic society for the management of copyright in Italy.

The recent Directive 2014/26/EU states, however, the principle that rights holders should be able to freely choose to entrust the protection of their works to the collective management bodies they consider most appropriate, also to independent management entities, regardless of the state of nationality. The Directive also grants the authors the right to divide the protection of their works between different collecting societies.

The new standards should promote the coexistence of the CC licenses with the traditional collecting societies, to create a more flexible and efficient system of protection.

This system thought by Lessig affirms a belief in copyright, because it is in essence a copyright license, but it also affirms the innate value of those digital environments where the rules of exchange are not necessarily defined by economic criteria.

What is Digital Watermarking and How it Works.

Digital Watermarking is defined as non detectable marking on images, videos, 3D data, audio or text. They can be read by computer assisted methods. Digital Watermarking may contain several different watermarks simultaneously.

Digital Watermarking is used for different purposes. Digital Watermarking helps in the prosecution of copyright infringement. Unlike metadata, Digital Watermarking directly interwoven with the content to be marked, with steganographic methods. In the case of the robust watermark this integration ensures that the elimination of the watermark makes it unusable.

In various research and development projects that focused initially on the area that processes have been developed mainly for commercially relevant content such as audio and video data and 3D models. There are also Digital Watermarking methods such as for marking databases, musical notes, still images and text.

Occasionally, semi-transparent overlays in images or videos, for example, logos or copyright information, mistakenly referred to as digital watermarking. The usage is misleading, as that neither the carrier (image or video) might not necessarily be available in digital form, the Digital Watermarking is read out digitally. A superimposed semitransparent photo lettering is clearly traceable to the origin, without any need of digital technology.

Digital Watermarking has different characteristics; perceptibility denotes the influencing of the quality of the labeled content, robustness, detectability are other points.

The nature of the embedded message is determined by the application. This can be, for example, in the case of the proof of authorship, information regarding the copyright owner. In the general case metadata is embedded; Unique identification number of the contents similar to the ISBN is used in those cases.

Both classes of methods – digital watermarking and digital fingerprinting – belong to the class of passive protection mechanisms. In contrast to active defense mechanisms, such as encryption which is used to prevent unauthorized access to the content.

A special class of Digital Watermarking are reversible Digital Watermarking techniques. Here, the embedded Digital Watermarking can be removed and the original message can be recovered. This brings you the recovery information in addition to the newly introduced. Applications of this reversible Digital Watermarking technique is used in medical image processing.

Internet Copyright Infringement: 5 Myths vs. Facts

If you Run a Website or post to social media you are probably breaching copyright and you don’t even know it!

Myth 1. Once a ‘Work’ is posted online it loses copyright protection. Wrong!

Fact: You cannot use, copy or post someone else’s photo’s, images, songs or articles without their permission. The person who created them owns these ‘works’ and they have copyright protection form the moment the ‘works’ were created and they loose this ownership protection according to their national laws (usually 50 or 70 years after their death).

Myth 2. I can copy a ’work’ online provided I give the owner credit or a link back.

Fact: You cannot use other people’s ‘work’ unless they first give you permission. Some websites

say you can use any material from their site provided you link back and give them permission unless it’s specifically granted on the ‘work’.

Myth 3. If I alter the ‘work’ or inly use part of it, I am not breaching copyright.

Fact: Derivative works are still covered by Copyright. The only exception is if you are writing a critique and you are referring to the ‘work’. This is considered fair use.

Myth 4. If there is no copyright symbol or notice the ‘work’ can be freely used.

Fact: there is no requirement to display a Copyright symbol or register any work to have copyright protection. A work is protected from the moment it is created and the owner does not lose their copyright if they don’t use the Copyright symbol.

Myth 5 I can use another person’s ‘work’ as long as I don’t’ profit financially from it.

Fact: you are breaching copyright whether you make money or not. The argument that you are giving the owner free advertising does not count. Any money you make would be taken into account by a court decision against you.