Abstract
When two works tell the same story, can this amount to plagiarism? Starting from the “Felicia Impastato” case and the judgment of the Rome Court of Appeal No. 5625/2024, this article examines a fundamental principle of copyright law: it is not the facts that are protected, but the form in which they are expressed. The comparison between a documentary and a fictional work helps clarify when similarities are insufficient to establish plagiarism, what role creativity – even minimal creativity – plays, and why, in works based on real-life events, copyright protection encounters precise limits. This is an issue of particular relevance to those producing audiovisual content, especially when working with true stories or well-known figures.
Plagiarism between audiovisual works: the “Felicia Impastato” case
The dispute dates back almost ten years (Tribunale di Roma, civil proceedings at first instance, case No. RG 47823/2017), when a film production company brought proceedings against a leading national television broadcaster, alleging that it had produced a fiction (“Felicia Impastato”, 2016) reproducing – at least according to the claimant’s allegations – numerous scenes from an earlier documentary film (“FELICIA La mafia uccide – il silenzio pure”, 2010) devoted to the life of Felicia Bartolotta Impastato, the mother of Peppino Impastato.
According to the claimant, the fiction had reproduced certain sequences from the original work in substantially identical form, allegedly going so far as to constitute plagiarism (by virtue of scenes which were claimed to have been “unlawfully appropriated, without any authorization or consent, from the defendant”).
The defendant’s position, however, was radically different. The two works – it argued – could certainly share the same historical subject matter, but differed profoundly in terms of narrative structure, language and dramatic construction. Moreover, the events portrayed were matters of public knowledge and, as such, could not be “appropriated”: “both works depict certain well-known episodes from the protagonist’s life which, as such, cannot be subject to a monopoly.”.
Why the Rome Court Excluded Plagiarism (June 10, 2021)
In the first-instance proceedings, the Court of Rome considered it necessary to appoint an expert witness (consulenza tecnica d’ufficio, or “CTU”) to compare the works and assess whether any plagiaristic elements were present.
The court-appointed expert excluded the existence of wholesale plagiarism, while nevertheless suggesting that some scenes might constitute a form of partial plagiarism.
The Court, however, took a different view and did not find the CTU’s conclusions persuasive – and therefore did not endorse them. After directly examining the works and the scenes in dispute, the Judges reiterated a principle now well established in copyright case law: when two works recount the same historical events, copyright protection cannot extend to the content of the events themselves, but only to the manner in which they are expressed.
The Court’s examination was precise, focusing on the specific sequences that had been challenged. At page 18 of the first-instance judgment, for example, we read that: “since, in the RAI fiction, the external manner in which the scene depicting the distribution of carnations is represented displays its own autonomy and originality vis-à-vis that of the claimant’s docufilm, the overlap of the scene and the appropriation of the creative core of the allegedly plagiarized work must likewise be excluded.”.
Ultimately, the story – especially when it is based on real events – remains part of everyone’s common heritage; what may be protected is only the specific form of expression adopted, insofar as it constitutes an appreciable manifestation of the author’s creativity.
On the basis of this fundamental principle, the Court dismissed the claim for damages (which, incidentally, was rather substantial: €200,000.00).
When an event becomes part of the collective heritage (Rome Court of Appeal No. 5625/2024)
The first-instance decision did not persuade the claimant, which – as it was fully entitled to do – appealed the judgment before the Rome Court of Appeal. According to the appellant, the Judges at first instance had been misled by structural differences between the two works that were, in reality, of little significance, while underestimating certain (in the appellant’s view, indefensible) similarities in their creative choices.
The appellate Judges, however, rejected this objection.
On the contrary, they held that the approach adopted by the first-instance Court was correct and endorsed its overall assessment: “the scenes […] appear not only to be differently organized in the two works at issue, but are placed within structurally different works, as also acknowledged by the court-appointed expert. Moreover, they depict events that objectively occurred and therefore cannot be monopolized” (Judgment No. 5625 of 2024, page 9).
Not only that: “the Panel considers that, following its examination of the facts and of the different positions advanced by the parties, it can agree that both the statements and the scenes for which protection is sought have become part of the culture and heritage of the community and, in the absence of any particular degree of overlap between the two distinct works, it does not appear possible to grant them copyright protection” (Judgment No. 5625 of 2024, page 10 – emphasis added).
Creativity and form of expression: why the same story can be told in different ways
The judgment also provides an opportunity to reiterate a fundamental principle: “in the field of copyright law, the legal concept of creativity does not coincide with that of creation, originality and absolute novelty”; rather, “a creative act, even if minimal, which nevertheless manifests itself in the external world” is sufficient (Judgment No. 5625 of 2024, page 6 – emphasis added).
An intellectual work may therefore be protected even if it introduces only a minimal creative contribution, provided that such contribution can be recognized as the author’s personal expression.
Precisely for this reason – the Court reminds us – the same idea (particularly where well-known facts and figures are concerned) may be developed in many different works, provided that each is characterized by its own expressive imprint.
The problem of biographical works in copyright law
When dealing with well-known facts and figures, the comparison with genre archetypes is not far-fetched; it is, in fact, obvious that many of the episodes used in narrative works may already belong to the collective heritage. They therefore cannot be subject to exclusivity.
What may be protected is only the set of creative choices (formal and stylistic) through which an author decides to tell that story: the narrative structure, the directorial approach, the construction of the scenes, and the pace of the narrative.
In the specific case, the Court held that the contested sequences were not merely organized differently, but were also incorporated into works that were overall different from both a narrative and structural perspective. Moreover, they depicted historical events that had actually occurred and therefore could not be monopolized.
The decision therefore confirms something well known to industry professionals: establishing plagiarism in the field of audiovisual works can prove difficult, particularly where the works share a common factual basis; because – when characters and events belong to the public domain – copyright law continues to protect not the story itself, but the unique form in which someone chooses to tell it.
Revisionato da: Arlo Canella
Data di pubblicazione: 24 Marzo 2026
© Canella Camaiora S.t.A. S.r.l. - Tutti i diritti riservati.
È consentita la riproduzione testuale dell’articolo, anche a fini commerciali, nei limiti del 15% della sua totalità a condizione che venga indicata chiaramente la fonte. In caso di riproduzione online, deve essere inserito un link all’articolo originale. La riproduzione o la parafrasi non autorizzata e senza indicazione della fonte sarà perseguita legalmente.
Daniele Camaiora
Senior Partner dello studio legale Canella Camaiora, iscritto all’Ordine degli Avvocati di Milano e Cassazionista, appassionato di Nuove Tecnologie, Cinema e Street Art.