Court precedent | Copyright: plagiarism – dismissal – intrinsic evidence.
Court precedent | Copyright: plagiarism – dismissal – intrinsic evidence.
“Levy, José and others s/ Dismissal”, National Court of Appeals on Criminal and Correctional Matters, Division 6, December 1st, 2020.
On December 1st, 2020, Division 6 of the National Court of Appeals on Criminal and Correctional Matters dismissed the criminal complaint filed by Daniel Frescó, author of the literary work “Enfermo de Fútbol”, published in December 2015, for allegedly defrauding his intellectual property rights by registering and cinematographically broadcasting the movie “El Fútbol o yo” as co-intellectual authors and declared owners.
In the facts, the producers had obtained, prior to the publication of Frescó’s literary work, the intellectual property rights of a film work of Belgian origin called “Je suis supporter du Standard”. When one of the producers learned that the literary author was writing on a similar subject, he contacted him to discuss the possibility that the film work that the producers intended to make could also include passages from Fresco’s work (…).
Based on the conclusions reached by the expert witnesses, the Court considered that there were points in common between the movie “El Fútbol o yo” and the book “Enfermo del Fútbol”, although it understood that this was not enough to consider that there was a violation of articles 71 and 72 of the Intellectual Property Law No. 11,723.
This decision was based mainly on the majority doctrine which understands that “the intrinsic test consists in comparing the two creations as a whole and not diverting the attention only on the existing coincidences (extrinsic elements) in order to determine whether the two works are substantially similar in the eyes of an average observer”. In this sense, the Court considered that the isolated coincidences between the literary work and the film did not allow to understand the action of the accused producers as criminals.
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