An industrial design object without artistic value is not an intellectual work

Judgement no. 302 of the Italian Supreme Court of Cassation delivered on August 1, 2022 upholds what it has been already stated in previous rulings (Cass. civ., sez. I, n. 23292 of 2015 and Cass. civ., sez. I, n. 7477 of 2017) regarding the copyright protection of a product intended for mass production.

If an industrial design object has artistic value in addition to creative character, it can benefit – being an intellectual work – from copyright protection provided for by Law no. 633 of April 22, 1941 (Copyright Law).

As a consequence, the author of the work can be recognized as the owner of the related moral rights aimed at assuring their ownership on the work created. These rights also defend the work in case someone else attempts to alter its form or content. The author gains also rights of economic nature represented and protected by the above mentioned normative, like those of reproduction, promotion, marketing and elaboration.

Creativity can be easily ascertained for in an industrial design product, as it does not have to coincide with the concept of originality and absolute novelty but with the notion of subjective creativity which each author uses to create a product as his/her personal and individual interpretation. Vice versa, the artistic value of the product must be gauged by using objective indicators which both the judges of merit and the court apply interpretating them rigorously.

In absence of an omni-comprehensive definition of artistic value, it is possible to infer whether an industrial design has artistic nature from the recognition in the cultural and institutional environments of the existence of aesthetic and artistic qualities able to give to an object a value and a meaning that transcend from the one connected to its strict functionalities and its mere elegance and agreeableness of the shapes.

Among the indicators/parameters which highlight such recognition there are:

  • i) The exposition in shows and/or museums of the design object
  • ii) The publication of the object itself in specialized non-commercial magazines
  • iii) The participation of the object to artistic events
  • iv) The award of prizes to the author and to the design work
  • v) Articles dedicated to the design work of expert critics within the sector.

The Supreme Court, in its statements, on one hand affirms that the above-mentioned indicators do not have to be realistically all presents in the case examined to confer artistic character to an industrial design object, but on the other hand it concludes giving a rigorous interpretation of these parameters such to strongly restrict the conditions under which an industrial design objects can be protected as intellectual works.

The case, to which the judgment in exam refers, concerns whether the artistic value should be to recognized to a collection of necklaces, initially marketed at retail stage and then at wholesale.

This judgement is an example of the reasoning followed by the Court to deny the necklaces artistic character and creativity.

Even though the collection of necklaces had been registered as a creative work in the Mibact Register of works protected by the copyright law, the Court excluded its creative nature. In addition, the Supreme Court – after affirming the principle of right that also industrial design goods can be characterized by artistry and therefore benefit from the protection as intellectual works, concluded that this collection did not have artistic relevance in accordance with an examination and a subsequent very rigorous, maybe even too much, interpretation of the above recalled indicators.


Maria Luisa Milanesi