Words cancelled – copyright uncovered?

Protection of the stile of an artist by copyright? Or rather by the law against unfair competition?

Comment on Emilio Isgrò c. Sony Music Entertainment Italy SPA, Tribunale di Milano, Specialized Section in Business Matters, decision of 25 July 2017

The Tribunale di Milano had to decide whether the album cover, the booklet and the CD cover of the new album “Is this the life we really want?” by Roger Waters, violate the copyrights in a painting “Cancellatura” of 1964 by Italian painter Emilio Isgrò.

Roger Waters’ album cover Emilio Isgrò’s “Cancellatura”

In a decision in the matter Emilio Isgrò c. Sony Music Entertainment Italy SPA of 25 July 2017, Dr. Silvia Giani, judge at the Tribunale di Milano, came to the conclusion that Isgrò’s copyright was violated.

The decision can be found (in Italian), see here for a English translation of the main sections 8 and 9 by Reinhard Oertli. See also the IPCat’s blogpost on this decision which comes to a different conclusion, with a comment by Reinhard Oertli.

The esteemed judge Dr. Silvia Giani uses the traditional distinction between expression (protected by copyright) and idea (not protected by copyright), which in fact is a truism and often causes fallacy. A closer look at the work by Isgrò and at the printings coming with Roger Waters’ recording shows that the cover uses the same technique and conceptual idea as Isgrò, but differs widely in its creative details. It suffices to look at the elegant word-by-word cancellations of Isgrò and the rough blacklining of the music cover, and in particular at the different way in which the left-over words are spread out over the page.

The Italian judge also supports her conclusion by a reference to the fact that Italian art critics had detected a reference to Isgrò’s work in the Roger Waters’ material. In my opinion, this may speak for the cultural prowess of Italian art critics but cannot be an argument for copyright violation.

While admitting that honest copyright experts may disagree on this conclusion, Reinhard Oertli considers Ms Giani’s decision on copyright wrong.

The Higher District Court (Oberlandesgericht) Cologne suffered from the same confusion between imitation of a concrete work and imitation of an artistic stile in its decision of 10 January 1997, Az. 6 U 94/96, NJW 1998 1416 – Mirò cosmetics, where the court held the following (lines 276 et seqq.)

“Against this background, the claim <for copyright violation> is not precluded by the fact that no particular individual work by Joan Miró has actually been edited or transformed. This is not necessary because only the typical individual characteristics of the artist’s works, which are easily recognized by the average customer, have been used. If, however, typical elements of the work are used in such a way that the impression arises that the work created in this way is a work by Joan Miró, a modification of his works ooccurred, even if no concrete picture has served as a model.” (Translation by Reinhard Oertli)

This holding has been heavily criticised and is being considered not in line with general principles of copyright law.

That does not mean that Ms. Isgrò should go defenceless in all circumstances.

If an artist or a commercial enterprise (or somebody who is and represents both, as in the case of Sony Music) uses (imitates) the characteristic elements of the stile of an artist without consent in order to promote and market his works or products, this may constitute an act of unfair competition. The imitation must be objectively suitable to promote the products and to channel the positive associations connected with the body of the artist’s work to the products so marketed. In case of imitations by an artist, the distinction between artistic use, to which only copyright applies, and commercial use, promotion of sales, such as with souvenir artwork sold at the streetside (which is subject to unfair competition law) may be tricky. So if litigation continues, Mr. Isgrò may consider switching the basis of his claim against Sony Music.

Further information:

• Emilio Isgrò c. Sony Music Entertainment Italy SPA, Tribunale di Milano, Specialized Section in Business Matters, decision of 25 July 2017

Header: CC BY 2.0