Musical Plagiarism of an Unpublished Work

The Court of Milan recently ruled on a case of alleged musical plagiarism concerning a song considered to be similar to another song previously filed as unpublished work at SIAE.

The requirements of musical plagiarism

Preliminarily, the Court restated some important principles in order to establish the existence of musical plagiarism.

On one hand, it recalled that the coincidence of a melodic musical fragments between the songs in comparison is not enough. First of all, there must be verified the presence of the constitutive elements of the copyright on the work of ingenuity, that is the creativity and the novelty of the musical fragment which is assumed to be plagiarized. Only after this analysis, one can proceed to evaluate, on the basis of the comparison of the works, if the plagiarism concerns melodic, harmonic and rhythmic components deserving of protection.

On the other hand, the Court established that the lack of publication of the work by the actor, and therefore its unpublished nature, is not an obstacle to the full operativity of the discipline of copyright which protects the so-called expressive completeness of any work independently from the fact that it constitutes a “utility source” and that it has already entered the market of published works.

Moreover, art. 2575 c.c. expressly recognizes that creative works of ingenuity pertaining to sciences, literature, music and figurative arts are the object of copyright – and benefit from the related protection – whatever the method or form of expression used. Therefore, even unpublished work may have expressive completeness when the requirements of the expressive concreteness are met.

In light of the above, only ideas and initial elements – that is embryonal of intuition and imagination – can be excluded from the context of application of copyright, which still need the typically authorial elaboration and the integration with other elements to create complete works as makers of a creative project.

The Court of Milan, moreover, reiterated that the conducts of usurpation are not typified and can be very different, to the extreme of the conduct of plagiarism of an unpublished work. Therefore, for logic consistency, it is possible to talk about plagiarism of a registered work by another similar work composed only by tracks or notes, as long as a servile imitation of what created by the author with the work amenable of protection occurs.

The Ruling of the Court

The Court, even though recognizing in abstract both the existence of the constitutive elements of copyright in relation to the unpublished work asserted in court, and the possibility to sue also when the work is still unpublished, excluded, in this case, the hypothesis of plagiarism on the basis of substantial differences in the rhythmic parts, form and structure, arose from the comparison between the two compositions.

Regardless of the outcome, the principles expressed by the Court will surely find application in many future cases.


Elena Bandinelli