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Appendix D: Biancheri vs RAI (2023)

Genoa Court: ascertained the authorship of the work to Biancheri. Recognized the copyright infringement by RAI. Ordered RAI to pay damages (€40,000). Ordered the removal of the program from RAI's website and the publication of the ruling.

Genoa Court of Appeal: confirmed the attribution of the work to Biancheri. Confirmed the creative character of the work. Recognized the commercial nature of the Sanremo Festival. Confirmed the timeliness of Biancheri's reaction. Confirmed the amount of compensation established in the first instance.

Court of Cassation: rejected RAI's appeal. Confirmed the decisions of the previous levels. Ordered RAI to pay legal costs. Confirmed the compensation of €40,000 in favor of Biancheri.

D.2. Key points examined by the courts

Authorship of the work: recognition of Biancheri as the author of the work The scent of the night. Evaluation of the creative process also considering the use of advanced software (Apophysis).

Creative character of the work: analysis of the artistic re-elaboration carried out by Biancheri. Distinction between simple reproduction and original artistic creation.

Use of generative software: consideration of the use of Apophysis in the creative process. Evaluation of the impact of the software on the creativity of the work.

Copyright infringement: analysis of the unauthorized use of the work by RAI. Evaluation of the commercial context (Sanremo Festival).

Timeliness of reaction: examination of the promptness with which Biancheri acted to protect her rights.

Amount of compensation: evaluation of the damage suffered and determination of the compensation amount.

D.3. Considerations of the Court of Cassation

Inadmissibility of RAI's appeal: the appeal regarding the question of the image generated with an algorithm was declared inadmissible on procedural grounds.

Evaluation of the creative process: the Court emphasized the need for an in-depth analysis to determine the impact of the use of software on the artist's creativity.

Compatibility between software use and creativity: the Court recognized that the use of software to generate images does not automatically exclude the possibility of creative elaboration.

Need for factual ascertainment: the importance of verifying to what extent the use of the technological tool influenced the artist's creative process was highlighted.

D.4. Implications for the use of advanced technologies in artistic creation

Recognition of technology-mediated creativity: the ruling suggests that the use of advanced software does not preclude the recognition of creativity and human authorship.

Importance of the creative process: the courts gave weight to the process of artistic elaboration, a principle potentially applicable also to works created with generative AI.

Case-by-case evaluation: the ruling emphasizes the need for an in-depth analysis of the artist's creative contribution in each individual case.

Opening toward new forms of creativity: the recognition of authorship in this case can pave the way for more inclusive interpretations for works created with emerging technologies, including AI.

Balance between innovation and copyright: the decision demonstrates the legal system's attempt to adapt to new technological realities while maintaining the fundamental principles of copyright.

This detailed analysis of the Biancheri vs RAI case offers an in-depth view of the legal and creative complexities involved in creating works with the assistance of advanced technologies, providing an important precedent for future discussions on authorship in the digital age and of generative AI.