"Immature poets imitate; mature poets steal"

Published on 12th Mar 2015

To a significant extent, the richness of art – in any of its many forms – derives from reworking familiar stories, images and thoughts into a new, unfamiliar form which hopefully will resonate with the audience to which it is addressed in a way that the original may no longer do. The process has been going on since time immemorial – Shakespeare was a noted thief of plots from earlier works for his plays – and as T.S. Eliot, quoted above, went on to say “Bad poets deface what they take, and good poets make it into something better, or at least something different”. From a literary point of view, therefore, taking material from another’s work is not necessarily improper; but the law of copyright may find it difficult to know where the line must be drawn.

The Italian Supreme Court had to tackle this problem in a copyright infringement action stretching back 19 years. The authors of Zingara (“Gypsy”), a hit song from 1969, and their publishing company, now Universal Music Publishing Ricordi S.r.l., sued the famous Italian singer songwriter Francesco De Gregori, author of the 1996 song Prendi questa mano, zingara (“Take this hand, gypsy”) from his album Prendere o lasciare (“To take or to leave”) and his phonographic producer, Sony Music Entertainment Italy S.p.A., which had released Prendere o lasciare with the track Prendi questa mano zingara.

Zingara, performed by Bobby Solo and Iva Zanicchi, won the Sanremo Music Festival in 1969. Messrs Riccardi and Albertelli, the authors of Zingara, alleged that the title and the first two lines of De Gregori’s later song constituted plagiarism of the first two lines of their song (the first two lines recurring repeatedly, in both works). The court at first instance agreed, despite some changes of wording in the relevant parts of De Gregori’s song, and ordered the song to be withdrawn. As a result, Prendere o lasciare had to be re-released in altered form. De Gregori said the order was “as if Campbell [Soups] had prevented Andy Warhol from reproducing the famous canned soup in his famous and extraordinary works”. The Court of Appeal of Rome overturned that decision in favour of Mr De Gregori and Sony Music, stating that the use of a poetic-literary fragment of one song in another does not constitute plagiarism of a musical work if the fragment included in the new poetic-literary text expresses an artistic meaning wholly different from that of the prior work.

The claimants then asked the Supreme Court of Cassation to overturn the decision of the court at second instance. The Supreme Court of Cassation, in its 19 February 2015 decision n. 3340, rejected Messrs Riccardi’s and Albertelli’s and Universal Music’s appeal. The Supreme Court confirmed that De Gregori’s use of a poetic-literary fragment from Zingara does not constitute plagiarism due to the fact that the fragment included in De Gregori’s song expresses an artistic meaning wholly different from that of Zingara, the latter being a simple love song –

“Take this hand, gypsy,
tell me what destiny I will have…
tell me she loves me…”

whereas Prendi questa mano, zingara was a much more equivocal text meditating more broadly on the human condition, in many ways more in keeping with TS Eliot’s own deeply equivocal works:

“Take this hand, gypsy
tell me what future I will have.
Now that the wind carries around the leaves
and the rain makes bonfires smoke
And one says, watch!
Another says where?,
one says I wonder…
how many years will my life hold? … “

with music unrelated to the melody of the earlier piece. The Supreme Court held that use of the small part of the earlier lyrics in this way was a tribute to the earlier piece rather than plagiarism, since it has not retained the same literary significance or has clearly and distinctly acquired a semantically different meaning from the previous work.

The singer Iva Zanicchi, who is now a politician, was quoted as saying that De Gregori’s reworking was “a nice thing: … every time I heard his song, honestly, I was pleased, it reminded me of my Gypsy… In short, for me underneath it could be a tribute to a great Italian song.”

It will always be a delicate task for courts, whose remit does not normally include literary criticism, to make assessments of this kind. But at least the principle has been accepted, that literary allusions should not simplistically be assumed to be copyright infringement.

Federico Ferrara and Gretel Malmsheimer of Osborne Clarke’s Milan office acted for Sony Music Entertainment in the case.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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