Can Art Installations Benefit From IP Protection? Italian First Instance Court Takes An Affirmative Approach

Author:Dr. Felix Hofer (Hofer Lösch Torricelli)
Profession:Global Advertising Lawyers Alliance (GALA)
 
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  1. The question of how far IP protection can be stretched in relation to creative work has kept Courts busy over the last decades.

    Earlier this year a First Instance Court in Milan (Italy) was approached in order to assess whether such protection could be invoked for what goes under the definition of an 'art installation'.

  2. In 2007, a designer and an art director created an artistic installation in the context of a project performed in favor of a not-for-profit organization. The work consisted in lamps, assembled as a giant puzzle and resulting in a light wall in red and white (the idea was to have this giant puzzle entering into the listings of the Guinness Book of Records).

    The intertwined puzzle tiles were also registered as a national figurative trademark.

  3. Four years later the authors of the installation noticed that a very similar work (a lamp puzzle) had been used in a TV commercial promoting a pharmaceutical product.

    Feeling that their author's and owner's rights had been infringed, the designer, the art director and the not-for-profit organization filed a claim with the IP Section ("Sezione Specializzata in Materia di Imprese") of a First Instance Court in Milan against both, the advertiser (a pharmaceutical company) and the ad agency who had prepared the campaign, seeking for injunctive relief and damage compensation.

  4. The defendants argued that the particular kind of installation could not benefit from IP right protection, insofar as it did not present the characteristics of 'novelty' and 'creativity', essential to the purpose. They claimed that puzzle tiles were constantly used outside of their 'natural context', i.e. that of a game (e.g. for composing the American flag).

  5. The Court disagreed with defendants' arguments, holding that: - 'Novelty' had not to be sought in the use of the lamps, rather in their assembling. - The concept of 'creativity' was not invalidated by the fact that the work had made use of ideas and items pertaining to the general knowledge of an experienced person. In the specific case, 'creativity' was to be found in the combination of items of common use (the lamps) for a completely different - original - purpose, i.e. that of combining them into a puzzle light wall. - 'Notoriety' had also to be taken into account and as to that plaintiffs had succeeded in substantiating that the light puzzle had been presented at MiArt (an international furniture fair), had been exposed in several renown parks and...

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