Isgrò vs. Waters: to the Milan IP Court, the cover art of Pink Floyd’s former member infringes the works of art of the Italian conceptual artist

With order of 25 July 2017, the Milan IP Court confirmed an ex parte preliminary injunction it previously ordered upon request of the famous Italian conceptual artist Emilio Isgrò against Sony Music Entertainment Italy S.p.A. (hereafter “Sony”), the Italian distributor of “Is this the life we really want?”, the last album released by Roger Waters, Pink Floyd’s former bassist. With this decision, Sony was enjoined from continuing to commercialise and distribute the album graphics (i.e. the casing, cover, booklet and labels) since it infringes copyright on Isgrò’s works of art and, in particular, on the “Cancellatura” artwork dated 1964.

“Cancellatura”Emilio Isgrò (1964)“Is this the life we really want?”Roger Waters (2017)

Firstly, the Court recalled that copyright protects only works as representations and expressions of ideas, feelings, knowledge and reality and not the ideas themselves, so any discussion on the possible meaning of the works involved in the proceedings at issue is not relevant. It is not the erasure technique itself that needs to be protected by the exclusive usage rights enforced by Isgrò, but only the external form of his works. Secondly, it pointed out that the sole requirement that a work must meet to be protected by copyright is creative character, which can be also modest according to consistent case law. This character, the Court noted, does not coincide with originality and absolute novelty, since copyright also protects works consisting of simple ideas and concepts, included in the knowledge of people having experience in the same field, provided that these are expressed and structured in a personal and independent way.

After a vain conciliatory attempt between the parties, during which the Court suspended the issued injunction, the injunction has now been entirely confirmed, with the provision of a penalty of € 100.00 for any violation and of the publication of the judgement in two Italian newspapers (in their paper and online versions); this, in light of the following grounds.In the proceedings at issue, Sony defended itself arguing that: i) the erasure technique could not be protected since it is an idea and not an exterior expression of an idea – this technique would in any case be used for the first time by the famous Dadaist artist Man Ray in his “Poeme Optique” dated 1924; ii) the conceptual content of the album cover would be different from that of Isgrò’s work, being inspired by the censorship of documents carried out by the US Government; iii) also the authors of the graphics should mandatory have been involved in the proceeding; and iv) the claimant would not have given evidence of any danger of delay.

In applying these criteria, Isgrò’s work has been considered to have creative character and, consequently, to be worthy of protection; moreover, even if not required by law (since we are not in the presence of industrial design, the only works category for which this additional element is required by law), to the Court, “Cancellatura” was also deemed to have artistic value, given the recognition it has achieved in contemporary culture.

In addition, Man Ray’s previous work – though clearly considered different by the judge, since the black lines on the white background depicted therein do not cover any graphic sign – would not remove the creative character of “Cancellatura” due to the personal trait, the individual character of the representation and the artistic value of the latter, even if it were accepted that this previous work had actually inspired Isgrò.

After having determined that Isgrò’s work could be protected by copyright, the Court made a comparison between such work and the contested album graphics, stating that the graphics had entirely resumed Isgrò’s personal expression, given the common representation of black lines, drawn in an irregular way, showing some underlying graphic signs and highlighting some specific words not covered by the black lines. Moreover, this had also already been noted by music and art critics at the time of the album’s launch, who immediately associated the contested cover with the Italian artist. In light of all the above, the use of such graphics reproducing Isgrò’s works was considered to be unlawful given the absence of the artist’s authorisation.

The Court did not even uphold Sony’s other defences: in fact, it stated, on one hand, that the graphics authors’ participation in the proceedings was unnecessary, because, under Article 156 of Italian copyright law and the so-called Enforcement Directive (i.e. 2004/48/EC), injunctions can be ordered against the author of copyright infringements as well as against the intermediary entity whose services are used to carry out such infringements – a category to which Sony belongs, being the album distributor; on the other hand, that, in the case at issue, there was a danger of delay, given that the speed and spread of the infringement was capable of causing serious damages to the claimant, including personal damages, taking into account the nature of the right infringed.