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Posted by | November 20, 2018 | comments



Disputes concerning intellectual property rights over architectural design - including interior design and custom furniture - have sharply increased over the past years.

The border between performing mere "technical project work" and "creative activity" seems to be the material element required to determine when an architect's work deserves IP protection and following rights provided by the law (such as the right to be mentioned as author in case of publication of the work).

Most of the cases examined by Italian Courts dealing with IP protection of architectural and interior design show two different approaches:

- a restrictive theory, aimed at granting IP protection to architectural design only in the presence of a distinct creative element, which renders the architect's work new, original, recognizable and featured by distinctive personalization.

- a broad theory, granting IP protection even in the presence of a "minimum creative act".

In an interesting case submitted to the Court of Venice in 2018, the court of first instance and the court of second instance respectively adhered to the first and to the second theory above, leading to two opposite rulings.

Specifically, the court of first instance denied IP protection (and right to be mentioned as author) to an architect in charge of the interior design of a yacht, because his work was not provided with a "creative" element.

On the opposite, the judge of second instance adopted a different protection threshold, specifying that even a minimum act of creativity is sufficient (in compliance with the Court of Cassation's majority opinion) to grant IP protection to the architect's work.

The two different approaches testify the complexity of the judicial assessment of an intellectual work (the architect's work in the instant case) for the purpose of granting IP protection.

Indeed, according to the current criteria adopted by Italian courts, answering to the questions "when a work is creative?" and "how much creativity is required?" to deserve IP protection, necessarily requires a subjective evaluation by the judge.

The parameters taken into consideration by the majority of Italian courts appear to take up a very broad scope of protection, granted even in the presence of a "minimum creative act".

Such approach appears to be in favour of the architect but it may lead to a paradox: the work of the architect could be belittled because any other professional may reproduce it, change minor elements and be afforded IP legal protection (with following right to be mentioned as author) as a result of the "minimum creative act" theory.

It is then legitimate to ask searching questions regarding the adequacy of the parameters adopted by the courts to assess the architect's work and the presence of the creative element. What we wish is the elaboration of parameters and methodologies aimed at actually enhancing the personal, original and distinguishing contribution of the architect in the creation of a project.



Court of Venice - Decision dated 17 February 2018 (*Parties omitted failing consent to the publication)

A client commissioned the construction of a luxury yacht to a leading company engaged in yacht design and construction (hereinafter defined the "shipyard"). During the previous years, the shipyard had already designed (including the interiors) and sold other yachts of the same model, rapidly gaining the status of "iconic" yachts.

In the specific case, the client only commissioned the hull and the deckhouse to the shipyard, while the lay-out, the interior furniture, the selection of the materials and the lighting were commissioned by the client to an architect.

The construction was completed and the client, taken delivery of the yacht, decided to sell it and requested to the same shipyard to act as broker in the sale. Therefore, the shipyard advertised the sale of the yacht, through the publication of photos and information, in its website, without mentioning the name of the interior design architect.

The architect filed a complaint before the Court of Venice, requesting an interim measure aimed at obtaining an injunction blocking the publication of the images of the yacht because harmful to his IP rights and activity of unfair competition.

The shipyard's defence pointed out that all the furnishing solutions designed by the architect did not show any degree of originality or novelty, being combinations already present and utilized in the nautical sector.


The court of first instance, with order dated 17 February 2018, agrees with the shipyard's defence and denies IP protection to the architect's work absent the "creativity element".

Specifically, the Court clarifies that architect's designs (under Article 2 of Law 633/1941, so called "Copyright Law") can be afforded protection provided that they have creativity.

In the specific case, the architect performed "interior design" work, protected under the Copyright Law (either as "architectural design" if they required a specific project work, or under the general protection of article 2 of the Copyright Law).

Further, the court provides the following clarifications:

Ø Pieces of furniture are often designed or created by using objects easily available in the market, or through solutions already belonging to common knowledge and notorious applications; hence, they can reach the "dignity" of protection under the Copyright Law only if they pass a very scrupulous scrutiny of the creative element.

Ø Planning and projecting the interior design of a yacht, by choosing lights and colors, handles and accessories, is not sufficient to make a creative work.

Ø The reorganization of the interiors according to the personal needs of a client, based on a new project, does not automatically imply that the outcome of the project is creative, i.e. a work which reveals the personal imprint of the designer. "Project" is the mere technical act required for each new realization, while "Create" only refers to an original project.

In the instant case, the court examined the project designs, the illustrations and the photos. Such material, clarifies the court, shows the interior design and does not indicate neither the creation of new and original pieces of furniture, nor interior design solutions appearing to be linked to a unitary interior design concept, recognizable and distinguishable, for strong personalization, revealing a distinct imprint of the author.

Hence the Court rejects the architect's complaint, based on the opinion that the interior design solutions elaborated by him are not unknown to the nautical world.

The Court specifies that the architect's work shows good taste; he improved the elegance of the yacht's interiors, he ameliorated the beauty of the furniture, with specific reference to the choice of the materials, the colors and the lights, which appear more refined than those proposed by the manufacturer; hence the general impression is extremely pleasant.

However, the Court concludes, the architect's work is not creative and hence it does not deserve IP protection.


Court of Venice in Second Instance - Decision dated 7 August 2018 (*Parties omitted failing consent to the publication)

The architect filed appeal versus the court's decision and the court of second instance, on 7 August 2018, reversed the decision of the judge of first instance and held that the architect's work was worth of IP protection.

Here below the court's line of reasoning:

- According to the opinion of the majority of Italian courts, the legal concept "creativity" under Article 1 of the Copyright Law does not refer to creation, originality and absolute novelty, but it refers to the existence of a creative act, even a minimum creative act

- Creativity can exist also if the work is made of simple ideas or notions, already comprised in the intellectual heritage of persons experienced in the matter; further, creativity is not the idea itself but its form of expression, i.e. its subjectivity.

- Architectural design is worth of protection also absent originality and absolute novelty; indeed, even following already explored project solutions, it shall propose itself as personal contribution and particular expression of creativity of the author, even if relating to elements already generally known and used.

- The protection of architectural design shall be extended also to interior design, especially when it relates to pieces of furniture which are the result of a project elaboration by the author. In such sector, what is important is the project and the interpretation of elements already known according to the personality of the author rather than the realization of single pieces of furniture.

- Hence, with respect to the interior design, if the project is the result not imposed by the technical-functional problem that the author wishes to solve, the requirement for the protection can be assessed having regard to the selection, coordination and organization of the elements that the work result is composed of, in relation to the result reached as a complex.

By applying the above criteria, the court believes that the work result of the architect is complete, composed of various elements relating to the organization of the spaces and their personalization; such elements assume, as a complex, the value of a distinguishing style which, as such, satisfies the creativity requirement under IP law with reference to the architects' work.

Hence, the architect's work deserves IP protection and he is entitled to be recognized and mentioned as author in any publications of the yacht's interior design.


For more on this please contact Lucilla Margherita at


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