UIA – FLORENCE 2014 CONFERENCE THE FINE LINE BETWEEN ART AND DESIGN Avv. Massimo Sterpi Jacobacci & Associati Roma - ITALY.

UIA – FLORENCE 2014 CONFERENCE

THE FINE LINE

BETWEEN

ART AND DESIGNAvv. Massimo Sterpi

Jacobacci & Associati

Roma - ITALY

THE ORIGIN

τέχνη

THE ORIGIN

Téchne = Art

Some examples of apparently functional

objects presented / sold as art objects

Fountain, Marcel Duchamp (1917)

With «transubstantiation», the artist transforms a pre-existent functional object giving it a title, signing it and exposing it in a museum. The artist

attributes to an object of common use a different meaning.

Perfect Lovers, Felix Gonzalez-Torres (MoMA collection)

New Hoover Convertibles, New Shelton Wet/Drys 5-Gallon Doubledecker- Jeff Koons

Moquette, Alberto Garutti(Buchmann Galerie, Lugano)

Z-chair and Meta table, Zaha Hadid

Some examples of apparently artistic objects

sold as functional ones

Cactus Sofa, Maurizio Galante Produzione: Baleri Italia

Panton Chair, Verner Panton (protected by copyright law, Court of Milan, 13 September 2012)

Divano Bocca, Studio 65Produzione Gufram

Hanako Table, Vito Selma

Table, Alberto Garutti(Design Gallery Milano)

Necklace, Zaha Hadid

Juicy Salif Cytrus, Philippe Starck

1) The implementation in Italy of the European Directive 98/71/EC of October 13, 1998

• Directive 98/71/EC (the “Directive”):

- Recital 8: “Member States (are) free to establish the extent of copyright protection and the conditions under which such protection is conferred.”

- Section 17: “the extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.”

• Italian Copyright law (Law no. 633 of 22 April 1941):

- Section 2 no. 10: grants copyright protection to designs provided that they have per se both (i) “creative character” and (ii) “artistic value”

- “creative character” > capacity to express the personality of the author and his individual contribution, i.e. “originality” (Court of Appeal of Milan, June 16, 2011, Court of Rome, September 23, 2011, Supreme Court, March 12, 2004)

- “artistic value” > no definition given by the Italian Copyright Law

• What does it mean today “artistic value” in art critic discourse and everyday language?

• Does it make any sense to refer to “artistic value” when referring to “non-artworks”, such as products of industrial design?

• Should the concept of “artistic value” be interpreted differently when applied to design, rather than art?

- Definition of art:

"To date, I have not found better definition of the art of this. Art is man added to nature - nature, reality, truth. But with the meaning, the concept, the character that the artist draws from it, freeing it and interpreting it ("Vincent Van Gogh - Letter to his brother Theo, 1879.)

- Definition of design:

"The real design is only the one in which there are strong interactions between scientific discovery, technological application, good design and positive social effect." (GK Koenig, Design: revolution, evolution or involution?, 1983).

- Examples of hybrid (art/design objects): see above

2) The relational definition of art and

the elusive definition of design

3) Concept of «artistic value» when applied to design

A) The concept of separability («separabilità») under the previous Italian law

- Before the Directive: an industrial object could be protected by copyright only if its artistic value could be (conceptually) separated by the industrial character of the product it was applied to (eg: a painting reproduced on a T-shirt)

- After the Directive: the concept of separability was removed, but, for some commentators, the requirement of “artistic value” should have been applied also now like necessarily separable from the industrial character of the object: however, this seems to be contrary to the express wish of the European legislator, that wanted to protect industrial design per se, and not because of artistic characters that can be separated from the object itself;

Italy

• No definition of “artistic value” given in the law

• Case-law: creation of an “objective test”, taking into consideration :

- fame of the designer;- design prizes won by the work of design; - recognition in cultural circles;- exhibition in prominent museums;- capacity of the work of the design to represent an artistic movement

• Problem: evaluation of the work after some time it has been created and traded on the market and not at its creation (how can new designs obtain copyright protection??)

Italy - LC4 Chair, Le Corbusier (protected by copyright law, Court of Milan, injunctions of April 26, 2011

and July 7, 2011)

Italy - LC1 Chair, Le Corbusier (protected by copyright law, Court of Venice, 28 April 2011 and Court of

Milan, 17 February 2014)

Italy - Arco Lamp, Castiglioni brothers (protected by Italian copyright law, Court of Milan, 12 September 2012)

4) Originality criteria other than “artistic value”

Criteria used in other EU Member States to protect design through copyright:

- France

- Germany

France

• French Copyright Act of 1957: a work of design may enjoy copyright protection if the requirement of originality has been met

• Originality exists each time the work is marked by “the stamp of the personality of the author”, which is found by the courts in the large majority of cases

• France is one of the European countries that protects the most easily industrial design by copyright

Germany

• German copyright law: requires a high level of originality for a work of design to be protected under copyright. A design will be protected only if it significantly exceeds the level of an average designer’s performance

• Case-law: in more recent decisions, the German Federal Court of Justice left the question open as to whether it will continue to adhere to the above criterion

5) The overlapping between art and design and how to interpret “artistic value” for design

•Three types of works

- (i) Artistic objects where functionality is residual (ex: the «Fountain», Marcel Duchamp)

- (ii) Objects meaningful in the artistic sense and also functional (ex: Bocca Sofa, Studio 65)

- (iii) Primarily functional objects, apt to become icons of design (Spider Orange Squeezer, Philippe Starck)

• For the first two categories: no special protection intended for design needed, as they can be covered by the copyright protection for sheer artworks

• For the third category: «artistic value» should be interpreted differently, ie as

extraordinary craftsmanship / design innovation

thus permitting:

- (i) to asses its presence from the very moment the object is created;

- (ii) to comply with the Directive requesting Member States to decide the «level of originality» required to enjoy copyright protection.

THANK YOU FOR

YOUR ATTENTION.

For any query:

Avv. Massimo Sterpi

Jacobacci & AssociatiVia delle Quattro Fontane 15 - 00184 Roma ITALY

Phone: +39 06 42013332

[email protected]