The Italian Gabibbo v. The U.S. Big Red – The Battle of Puppets
Probably in the U.S., no one has ever heard about an exotic red character, named the “Gabibbo.” However, in Italy, this awkward puppet is an icon.
Created in the 1990 by Mr. Antonio Ricci1 and featured for years by one of the most popular Italian television shows, “Striscia la Notizia” [“Slithering News”], the Gabibbo is a nonconforming “journalist”. What is odd is that all the people interviewed by this bizarre character used to answer its questions as if they were interviewed by a real and professional journalist. Indeed, the Gabibbo was conceived to criticize the Italian television shows and to prove that even an awkward puppet was able to acquire credibility on TV.
Despite its local popularity, some U.S. companies and Western Kentucky University not only noticed this clumsy character, but also thought that it was very similar (perhaps too similar) to “Big Red”, the mascot of Western Kentucky University. Big Red made its official debut in the 1979-1980 season of the Western Kentucky University basketball championship, and has grown to celebrity status first in Kentucky and then all over the U.S.
Thus, U.S. companies and Western Kentucky University started a legal action before the Italian Courts (against, among others, the Italian Television Company that broadcasted the show) for copyright infringement. Unfortunately, such (long-lasting) proceedings did not turn out as the U.S. plaintiffs were expecting. After loosing in the first and in the second degree of the proceedings, the owners of Big Red brought the case to the attention of the Italian Court of Cassation (the Italian highest Court), asking the judges to overrule the decision of the Court of Appeal.
However, also the decision of the Italian Court of last resort was not in favor of Big Red. On January 11, 2017, the Italian Court of Cassation upheld the decision of the Court of Appeal and declared that Big Red did not meet the thresholds for copyright protection, in the first place.2 In this regard, the Italian Law (Copyright Act of 1942) allows the copyright protection of works which (i) are characterized by a modicum of originality and creativity, (ii) express the personality of the author, and (ii) are fixed in a perceptible form. In this case, protection is automatic and starts upon creation of the work, with no need for formalities or registration.
In its ruling, the Court of Cassation stated that Big Red lacked the aforesaid modicum of originality and creativity necessary to obtain copyright protection, since its shape – that mimic a human figure – was quite trivial and obvious for a puppet. In particular, the documents submitted by the defendant showed that Big Red’ shape was not dissimilar to the one of other well known puppets, that resemble “awkward humanoids made of a red shapeless mass, with big head and large mouth.”3
Having stated that Big Red did not meet the standards for copyright protection, the analysis regarding the alleged infringement was not necessary (since only once a “work of art” satisfies the requirements for copyrightability, its infringement can be claimed).
However, the Court of Cassation went forward and clarified that, even in case Big Red had deserved copyright protection, the Gabibbo would not have infringed the U.S. puppet’s rights. According to the Italian judges, the two characters indeed showed several “physical” and “conceptual” differences.
As to the “physical” one, the Gabibbo was fatter and had legs shorter than Big Red, had a nose (absent in Big Red), had marked eyebrows and a different shape of the mouth. Moreover, the Italian puppet used to wear no shoes, a bow tie, a stomacher and a wrist cuff (that the U.S. peer did not have).
Furthermore, from a “conceptual” standpoint the two puppets represented different characters, since the Gabibbo was (and acted like) a cynic journalist, whereas Big Red was a friendly mascot of a basketball team. Therefore, the comparison of the two puppets evoked a different overall impression in the average observer, who has to evaluate the possible infringement.
Although arguable, the present decision reminds us that when it comes to the legal protection of characters that are very popular in one country, but not in another one, rulings may be less predictable than usual.
This may depend on the person (the average observer), who has to analyze whether an IP infringement exists. Indeed, if the observer is familiar with a particular “domestic figure” (like the Gabibbo in the present case), he will inevitably detect details and slight differences in the characters at issue, that would not be noticed, nor understood by a “foreign” viewer.