Walking in Milan during the Art Week you probably come up against the Venice gate’s bastions wholly wrapped up with hundreds of hessian fabrics.
The mind will go to Christo who, since the later sixties, wrap up famous monuments around the world.
However, the author of the packing, in this case, is Ibrahim Mahama, a young artist from Ghana who has realised this installation site specific for the Nicola Trussardi Foundation.

The occasion is good to reflect on what it is protectable and on what it is plagiarism.

In fact, someone might ask if Mahama’s work is plagiarism of Christo’s work.
The answer should be negative. According to fundamental principles expressed several times by jurisprudence, ideas, even if equal, can be differently represented and they are not under the copyright law protection.

Then the question should be when there is just inspiration and when there is plagiarism instead.
Interesting to mention is an Italian Supreme Court decision[1] about the case Vedova-De Lutti.

The Court confirmed his line: there is no plagiarism when the artworks convey a different meaning, even if they originate from the same idea or inspiration.
Uniquely the extremely personal interpretation is legally protected, and a work of art is plagiarised in those situations in which ideas are essentially represented identically.

In the case Vedova-De Lutti the Court analysis focused on spatial and chromatic details and proportions, finding that they appeared simplified from Vedova’s but that the technique was fundamentally the same, with repetition of stylistic modules without any different artistic meaning.

This decision is significant also with regards to the art gallery’s liability for damages.
The  Italian Supreme Court held that plagiarism is committed not only by those who create the contested artwork but also by who take part in marketing it.

In the mentioned case, the claimed paintings by the artist De Lutti constituted plagiarism, and an art gallery used these paintings as promotional material in addition to being offered for sale.

The Court judged the gallery jointly liable as a failure of due diligence according to the Italian Civile Code rule[2] which states that diligence in a professional context will be evaluated in consideration of the nature of the activity carried out.

In relation to experts in the art market, the rule imposes a “qualified diligence” to verify a work’s authenticity prior to engaging in commercial acts.
Moreover, good faith was not considered an adequate defense in these circumstances, as the mistake could have been avoided by using ordinary diligence for the sale of artworks.

In particular, art dealers must provide appropriate documentation regarding authenticity or provenance and check whether the works are plagiarisms.
In the case at hand, the art operator should have paid attention to Emilio Vedova’s well-known artistic style, and to the fact that his works have original and recognisable traits within the informal abstract art movement.

This decision, in conclusion, raises questions as to the borders between inspiration and plagiarism and to the role of art dealers in commercialising controversial works.

In any case, art galleries should be prudent with their duties and prudent of the artworks they include in their promotional material, as this could be used as evidence of collaboration in a plagiarism case.

Cecilia Carbonari

 

[1] Decision n. 2039, January 26, 2018
[2] Art. 1176 of the Italian Civil Code