After 15 years, the Italian Supreme Court has brought the long-standing matter to an end: according to the decision of the Court, Italy’s Gabibbo is not a copy of America’s Big Red, and there is no finding of copyright infringement.
This is the result of drawn out proceedings which commenced in 2002, when several American companies, including the Western Kentucky University, summoned a number of Italian entities before the Court of Ravenna to contest the use and commercial exploitation of the puppet “Gabibbo”.
The Claimants alleged that Gabibbo – the red and rather clumsy character created by Italian television producer Antonio Ricci and appearing on Italian Television in October 1990 – infringed the copyright in their puppet Big Red, a red, furry and athletic mascot of Western Kentucky University, known in the US as the WKU icon and representing the Spirit of Western.
The case was met with substantial interest in Italy and enjoyed considerable media coverage. With decision (no. 503) published on 11 January 2017 the Italian Supreme Court confirmed the earlier decision issued by the Court of Appeal of Bologna (decision no. 609/2011) confirming that the American puppet did not have a sufficient degree of creativity to be protected under Italian copyright law. The Court reasoned as follows:
firstly, Big Red was not deemed original on the grounds that it was considered “a clumsy humanoid having a shapeless red mass and big head and mouth” like many other well-known puppets, including “Barbapapà”, “Elmo Muppet” and “Grossamer”. The American puppet seemed “trivial and obvious” due to the simplicity of its shape, and its features were not considered sufficiently unique to grant it copyright protection. Finally, the Court also pointed out that even if Big Red had deserved copyright protection for its facial features, Gabibbo would not have constituted an infringement due to the differences between the two puppets.
Indeed, Gabibbo is a clumsy red humanoid with a big head and mouth, but featuring a number of details that differ from those of Big Red, including a bow tie, a stomacher and a wrist cuff. In addition, the puppet had other original features, such as marked eyebrows, a nose (which Big Red does not have), a sideways movement of the mouth, longer legs, a different body shape and no shoes: all of these details clearly enhance its overall difference from the American puppet.
Since the likelihood of confusion assessment is based on the overall impression of the average viewer, in the case at hand the overall assessment of the formal differences between two puppets (with specific reference to their body shapes) led to the exclusion of any copyright infringement.
By way of conclusion, the Supreme Court stated that the decision issued by the Court of Appeal was sufficiently grounded and, consequently, the appeal against the second instance decision was rejected.
Gabibbo, the well-known Italian TV character, has definitely been “acquitted” of all charges laid down against him!