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.

JE SUIS CHARLIE: Alicante halts a speculative trade mark application.

On Friday the Alicante-based Office for Harmonisation in the Internal Market (OHIM) -- the body responsible for the processing of Community trade mark applications -- issued the following statement with regard to the controversial practice of making speculative trade mark applications for the rallying slogan "Je suis Charlie":

"As a general rule, OHIM's policy is not to comment on any individual cases of trade mark or design applications either before examination or at any stage of the application and registration cycle.
However, the IP issues surrounding the registration of the "Je suis Charlie" mark could be considered to be of overriding public interest.

Therefore, according to OHIM's Guidelines for Examination on Community Trade Marks (Part B, Section 4), an application which consisted of or which contained the phrase "Je suis Charlie" would probably be subject to an objection under Article 7 (1) (f) of the Community Trade Mark Regulation, due to the fact that the registration of such a trade mark could be considered "contrary to public policy or to accepted principles of morality" and also on the basis of Artice 7(1)(b) as being devoid of distinctive character".

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

YouTube Threatened with Big Copyright Lawsuit

Global Music Rights is a performing rights company that competes with other collecting societies such as ASCAP and BMI. Its clients include Pharrell Williams, John Lennon, The Eagles and Smokey Robison.

It claims that more than 20.000 videos are not licensed. Royalties that could amount to hundred of millions of dollars.

CEO Irving Azoff says that Google Inc. the owner of YouTube has shown no willing to cooperate and threatened to sue the company for copyright infringement.

Google responded by accusing Global Music Rights of attempting to circumvent the DMCA.

Google already settled a claim with Viacom this year by claiming that no money changed hands.

What is Italian Sounding?

Protecting and developing products requires raising awareness about the historical, cultural and social heritage of our country.

Geographic origin is especially important for Italy, the European country with the most products registered as DOP and IGP.

The term Geographic Indication (GI) refers to DOP and IGP products as established by article 2 of European Community Regulation n. 510/06, OF 20 March 2006.

The matter of the fact is that the so called Italian Sounding Syndrome does not only concern food products: the phenomenon has reached enormous proportions, affecting products of all kinds, violating intellectual property and thus becoming a legally pursuable offense which is costing Italy 100's of billion.

Exactly that happened in Canada. Maple Leaf Foods registers "Prosciutto di Parma" as a trade mark,

produces some salted-dried pork and sells it under the Italian name. Next?

You guessed right: producers who make the traditional, original prosciutto di Parma can't call it by its real name in Canada because Maple Leaf Foods was more clever with the paperwork... 

What is the difference between the two you might ask?  Well...for one, Parma (the original ) only sells ham...

The Panther goes to Court.

By order n. 46868 filed in the Court on 13 November 2014, the Second Criminal Chamber of the Italian Supreme Court decided, to remit the examination of United Penal Sections on the following question: "if the introduction on the market of serial morphological toys, not bearing any brand, constituents the unlawful reproduction of articles protected by trademark is an offense according to Articles 473 and 474, or in art. 517  of the criminal code". 

The case arose from the introduction into Italian territory of a batch of 21,822 puppets depicting a counterfeited  MGM "Pink Panther".

On the merits, the Territorial Court observed that the puppets seized strongly resemble the character "Pink Panther", which are a specific registered trademark and, therefore, as such, subject to trademark protection.

The Court is expected to rule in the next two months.