Can Nativity scene characters attract copyright protection under Italian law? It depends

Typical Nativity scene

At Christmas time the making of Nativity scenes in churches and homes is a Catholic tradition that is particularly common in Southern Europe.

Like many other Italian children, I have wonderful memories of when my brother and I used to plan and realize new Nativity scenes every year under the supervision of our parents.

But can the various characters (little statues) that compose the various Nativity scenes be eligible for copyright protection?

This is an issue that has been recently at the centre of litigation in Italy.

Katfriend Angela Saltarelli (Chiomenti) discusses an interesting ruling of the Italian Supreme Court (Corte di Cassazione).

Here’s what Angela writes:

“Naples is famous all over the world for its Nativity scene tradition, which dates back to the late 1700s. This city has even a pedestrian road called San Gregorio Armeno, where you can admire dozens of shops selling hand-made Nativity scenes.  Those shops sell any kind of characters: the Neapolitan Nativity scene does not only consist of traditional religious characters such as the Three Wise Men, Baby Jesus, Joseph and Mary, but even of characters that may have stood out positively or negatively during the year: politicians, actors and football players. Around the manger, a whole village is then created, made of houses, waterfalls, but also fruit markets or pizzerias.

Beyond such artistic figures, hand-made by Neapolitan craftsmen, there are also industrial companies making serial productions of Nativity scene characters. One of them filed a lawsuit before the Court of Naples for copyright infringement and unfair competition against another company making and marketing similar products. The claimant sought the immediate withdrawal from the market of the alleged infringing products and an injunction, as well as compensation of damages.

Following decisions at first instance and on appeal that dismissed the claimant’s action, in early 2018 the Italian Supreme Court also rejected (decision 653/2018) the claims stating that Nativity scene characters cannot be considered as works protected by copyright under the Italian Copyright Act (Legge 633/1941).

Via San Gregorio Armeno in Naples

The Court excluded that the products at issue could be considered as artistic works. It reached this conclusion by reasoning that, in order to be protected, such statues should have been the product of the artist’s creativity and, therefore, they should have been be created only in one specimen or in a limited number for a restricted market (as the artworks that you can find in San Gregorio Armeno). None of these criteria were satisfied in the case at issue, as the relevant statues were produced on large scale and in unlimited number.

Though the level of originality required for copyright protection under Italian law is generally low, the Italian Supreme Court found out that the statues at issue were also stereotypical, in that they were based on the classical religious iconography and that no sign of the artist’s personal touch or high-quality execution were present.

Moreover, the Court held that the statues could not be protected as designs either. Indeed, the Italian Act (Art. 2, paragraph 10) includes among protectable works also “the works of industrial design which per se display creative character and artistic value”.

Beside lacking originality, the statues at issue lacked artistic value also because of their failure to comply with other criteria for protection, including: the creation by an artist, the acknowledgment of artistic and aesthetic qualities by cultural and institutional environments, the display in museums, the publication on specialized reviews, the award of prizes, and a market value so high to transcend its mere functionality.”