In RAI Radiotelevisione Italiana S.P.A. vs. Biancheri, the Italian Court of Cassation affirmed the lower courts’ decisions upholding a copyright infringement claim for the protection of a computer-generated image of a floral fractal, which repeats the same shapes to generate the design of what resembles a flower. The image titled “The Scent of the Night” was generated by an artist and architect Chiara Biancheri of Genoa using Apophysis software. Ms. Biancheri sued RAI for copyright infringement based on RAI’s alleged use of her artwork “The Scent of the Night” to promote its Sanremo Festival.
Biancheri’s work satisfied “creative character”
The Court of Genoa found that Biancheri was the author of the artwork, which the court found to be creative, a requirement under Article 1 of the Italian Copyright Act (“works of the mind having a creative character”), and ruled in favor of Biancheri and ordered the payment of damages liquidated equitably in € 40,000.00, and the removal of the infringing program from the website and the publication of the sentence. The Court of Appeal of Genoa upheld the decision.
RAI wAIVED ITS CHALLENGE TO BIANCHERI’S AUTHORSHIP BASED COMPUTER-GENERATION
In the Court of Cassation, RAI attempted to contest Biancheri’s claim of authorship of the artwork based on the “an image generated by software and not attributable to a creative idea of its supposed author as a work of genius.” However, because RAI did not raise this argument in the lower court in the first instance, the Court of Cassation ruled that RAI cannot raise it for the first time before the Court.
THE COURT OF CASSATION’S DISCUSSION OF THE COURT OF APPEALS’ ANALYSIS OF BIANCHERI’S CREATIVE Input IN THE WORK
Because the Court of Cassation did not consider RAI’s challenge to Biancheri’s authorship, we don’t have a ruling on that challenge. However, the Court summarized the Court of Appeal’s discussion of Biancheri’s creative act in the image, reflecting her personality. That discussion may well apply to future challenges of AI generated works.
4.3. In the present case, the Court of Appeal started from the exact premise, in accordance with the jurisprudence of this Court, according to which in the field of copyright the legal concept of creativity, referred to in art. 1 of the law n. 633 of 1941, does not coincide with that of creation, originality and absolute novelty, but refers, conversely, to the personal and individual expression of an objectivity belonging to the categories listed, by way of example , in the art. 1 of the aforementioned law, so that an intellectual work receives protection on condition that a creative act, albeit minimal, susceptible of manifestation in the outside world can be found in it. Consequently, creativity cannot be excluded just because the work consists of simple ideas and notions, included in the intellectual heritage of people having experience in the subject; moreover, creativity is not constituted by the idea itself, but by the form of its expression, or by its subjectivity, so that the same idea can be the basis of different works, which are or can be different due to the subjective creativity that each of the authors spends and which, as such, is relevant for the purposes of protection (Sect. 1, n. 25173 of 11.28.2011; Section 1, n. 21172 of 10.13.2011; Section 1, n. 20925 of 10.27 .2005).
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4.4. In this case, the Court of Appeal observed that the work is creative when it expresses an original idea, deriving only from the inspiration of its author and confirmed the assessment expressed by the judge of first instance, arguing that the image was not a simple reproduction of a flower, but it involved a real reworking of it, therefore worthy of authorial protection due to its creative nature (page 11, first period). The Court of Appeal, then, strengthened this assessment, accounting for the broad appreciation given to the work by RAI itself on the occasion of the presentation of the event to the periodical press, aimed at highlighting the flower and its symbolic value by making it camp on the bare stage, instead traditionally decorated with real floral decorations. Finally, he considered the degree of notoriety achieved by the work on the web as a further confirmatory indication, accounting for views, preferences and comments.
4.5. The motivation is therefore existing and not merely apparent and accounts for the path followed by the Genoese judges: the work is not a simple reproduction of a flower but a reworking of it; RAI itself implicitly recognized it, enhancing it in an accentuated way as a symbol of the event; users have reacted positively with the acquisition of a good degree of notoriety.
4.6. It should also be added that the protection of copyright postulates the requirement of originality and creativity, consisting not in the idea that underlies its creation, but in the form of its expression, or rather in its subjectivity, assuming that the work reflects the personality of its author, manifesting his free and creative choices; the concrete consistency of this autonomous contribution is the subject of an assessment destined to result in a judgment of fact, as such subject to review in the context of legitimacy only for any defects in reasoning (Sect. 1, n. 10300 of 29.5.2020; Sect. 1, no. 13524 of 13.6.2014; Section 1, no. 20925 of 27.10.2005).