Turin court considers moral rights claim over Fiat ad

Who: Riccardo Pagani (Art Director of Leo Burnett from 2007 to 2014) v. Leo Burnett Company Ltd

Where: Court of Turin (“Court”)

When: March 2015

Law stated as at: 4 June 2015

What happened:

Mr. Riccardo Pagani, former Art Director in the Italian office of ad agency Leo Burnett, applied to the Specialized Division of the Court of Turin in order to obtain an order  recognising his right to be considered and indicated as co-author of the script of the “Cult Yacht” advertisement for the Fiat 500 designed by him while he was an employee.

The Court of Turin, by its Order dated 31 March 2015, acknowledged Mr Pagani as the co-author of the idea underlying the commercial and ordered Leo Burnett to alter the authorship credits on the ad accordingly. This was because Mr Pagani submitted persuasive evidence of his having originally conceived the key elements of the spot. This was in the form of his original clipboard, which  detailed the claim in the final version of the ad as published,  (“one day you will realize that the size of your car does not matter at all, what really matters is the size of your yacht“), the setting (“a beautiful coastline surrounded by a beautiful Mediterranean landscape”), the tone of voice (“wise and calm“), the jokes of the protagonist (“intended to stigmatize the race to status symbols“) and the final scene (“the car enters a port and its driver turns out to be the owner of a huge yacht “).

Why this matters:

The Turin Court held that, even if the script of the commercial was not protectable under the law on copyright, the script itself represented the means by which Mr. Pagani had contributed to the creation of the commercial as broadcast, thus acquiring the right to be indicated as its co-author in the credits.

Although it is commonly accepted that simple ideas that do not result in a creative work are not protectable under Italian copyright law, in this case the Court recognised that the contribution of Mr Pagani had assumed such a creative nature as to allow him to acquire the right to be qualified as moral author of the final (and protected) work, given the essential role that the “idea” has in the creative process of a commercial.

In the UK, moral rights can only be exercised in respect of material protected by copyright and employees are not entitled to exercise moral rights in respect of any literary, dramatic, musical or artistic work they produce in the course of their employment. If this scenario were transposed to the UK, therefore, it is unlikely the claim would have succeeded. However, this case underlines that Italian IP law takes a different approach by recognizing moral rights even to employees. As a matter of fact, according to the Italian Law moral rights cannot be waived.

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