that are the expression of such creation”, without exception for design works: therefore the Court concluded that “the circumstance that a design may generate an aesthetic effect does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author”8. The copyright protection of a work also includes the right to reproduce it (including photographic reproduction: the exclusivity on the photographs or films of the installations is indeed the typical form of economic exploitation of the same by the owner of the rights), in this case without the limit of private use and for non-commercial purposes, which in the field of copyright does not work, and therefore offers authors the possibility to prohibit any replication of the work, even in a “diversified” form that constitutes an elaboration, even creative. On the other hand, it is not forbidden to simply take a cue from one creation in order to create another autonomous one, and obviously the boundary is thin: there is an elaboration, and not an autonomous creation, even if it is “inspired” by the previous one, when the expressive elements are taken from it (not the idea only, which cannot be monopolized by copyright), as it happens, for example, for a literary work, when the plot and the characters are taken at least in part to make a sequel or a prequel of the story, while it is always allowed to draw inspiration from it, or to take generic or non-expressive elements, such as the style and the basic situation. Of course, the discrimination between the two cases is even more difficult when discussing an installation, but it is clear that it is not possible to take up precisely the elements representative of it, such as the arrangement of the lights aimed at creating a particular effect. An even more delicate problem is to establish who is the owner of these hypothetical copyrights. Art. 10 of the Italian copyright law states that “If the work was created with the indistinguishable and inseparable contribution of several people, the copyright belongs in common to all co-authors. The undivided parties are 8 CJEU judgment delivered on 12 September 2019 in case C-683/17, Cofemel-Sociedade de Vestuario, SA v G-Star Raw CV: see Galli, La tutela “Europea” di diritto d’autore per le opere dell’Industrial design e la necessità di un approccio realistico, in Riv. dir. ind., 2020, I, 51 ss.; Endrich-Laimbök, Little Guidance for the Application of Copyright Law to Designs in Cofemel, in GRUR International, 69(3), 2020, 268 ss.; Kur, Unité de l’art is here to stay - Cofemel and its consequences, Max Planck Institute for Innovation & Competition Research Paper No. 19-16, 2019, 12; Schovsbo, Copyright and design law: What is left after all and Cofemel? – or: Design law in a “double whammy”, 2020, 7, in https:// ssrn.com/abstract=3519156. In Italy the Supreme Court recalled and made its own the teaching of the European Court of Justice in the Cofemel (12 September 2019, in Case C-683/17) and Brompton (11 June 2020, in Case C-833/18) judgments, inferring the “need, in the protection of industrial design, to give greater importance to the ‘original’ aspect of the product rather than to its artistic value or to make a less severe assessment of the requirement of the artistic element, giving greater importance to the original character of the design”: see Supreme Court of Cassation, 29 November 2023, no. 37100 and likewise Supreme Court of Cassation, 30 April 2020, no. 8433. 270 CESARE GALLI
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