Innovation Law Insights

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Legal Leaders Insights | Ronan Davy Associate General Counsel at Anthropic

Dive into an insightful conversation on the future of AI law, compliance, and innovation with Giulio Coraggio of DLA Piper and Ronan Davy, Associate General Counsel at Anthropic, one of the largest generative AI providers in the world. Discover the career journey of a top legal executive who has successfully navigated the evolving landscape of AI. Watch the episode here.

 

Artificial Intelligence

The US ‘Take It Down Act’: Prison time for distributing non-consensual intimate images, including deepfakes

On May 19, 2025, the Take It Down Act, a federal law that criminalizes the distribution of non-consensual intimate images – including those created using AI, has been executed. Under the new law, online platforms must remove such content within 48 hours of being notified.

What are deepfakes?

Deepfakes are AI-generated or manipulated audio-visual content designed to make it appear as though someone said or did something they never actually did. Using advanced machine learning algorithms, creators can swap faces, alter speech movements, or recreate voices with striking realism. While deepfake technology has legitimate uses in entertainment and film, it is increasingly exploited to produce non-consensual pornographic content – often targeting women and minors.

Why was this law needed?

In recent years, the spread of non-consensual intimate imagery – also known as revenge porn or image-based abuse – has surged, fueled by the accessibility of deepfake tools and the viral nature of social media. Thousands of individuals, particularly women, have found themselves victims of digitally fabricated or stolen sexual content, suffering severe psychological, professional, and personal harm.

In response, the US federal legislature passed the Take It Down Act, which criminalizes the publication or sharing of intimate images without the depicted person’s consent – whether the images are real or AI-generated. The law imposes penalties of up to three years in prison and financial fines. It also mandates that social media platforms remove reported content within 48 hours and make “reasonable efforts” to eliminate any duplicates.

Broad support, but concerns remain

The law received broad bipartisan backing and has been praised by activists, parents, and even First Lady. However, digital civil liberties groups such as the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) have raised concerns about the law’s vague language and potential for misuse.

Mary Anne Franks, president of the Cyber Civil Rights Initiative (CCRI), warned that the takedown provisions could become a “poison pill” for victims. The risks are twofold: platforms sympathetic to the administration might ignore reports, while smaller platforms could be overwhelmed by false claims – threatening both freedom of expression and user privacy, especially in encrypted environments.

Italian legal overview

In Italy, the Data Protection Authority has issued an informational guide to raise awareness about the risks of deepfakes. However, there’s currently no specific legislation addressing the issue. Depending on the case, deepfake use may fall under existing criminal offenses such as aggravated defamation, identity theft, fraud, cybercrime, extortion, threats, harassment, or unlawful distribution of sexually explicit content. Since these cases often involve personal data, the EU General Data Protection Regulation (GDPR) also applies.

On April 23, 2024, the Italian government approved a bill introducing a new offense in the Criminal Code: Article 612-quater, which specifically targets deepfake-related crimes. The new law punishes the dissemination of fake or manipulated content (images, videos, audio) created using AI with the intent to deceive and cause unjust harm. Penalties range from one to five years’ imprisonment.

Conclusion

From Italy to the US, governments are stepping up their regulatory response to the dangers posed by digital manipulation technologies. With Italy’s new deepfake offense and the US Take It Down Act now in force, the message is clear: abusing AI to violate human dignity and personal rights will no longer go unpunished – and the consequences will be criminal.

Author: Dorina Simaku  

 

Intellectual Property

Italian Supreme Administrative Court on the boundary between lawful advertising and ambush marketing

On April 11, 2025, the Italian Supreme Administrative Court issued an important ruling on unfair competition and parasitic advertising. The decision provides important clarification on the boundaries of lawful commercial communication and conduct that constitutes ambush marketing.

The dispute arose from a billboard advertisement placed near the Football Village of UEFA Euro 2020, for which a major ecommerce provider was fined EUR100 thousand by the Italian Competition Authority (AGCM). The advertisement depicted a white T-shirt bearing the company’s logo, surrounded by the flags of the 24 participating nations and accompanied by the slogan “Who will be the winner?” According to the AGCM, this combination of elements misled the public into mistakenly believing that the ecommerce provider was an official sponsor of the sporting event.

The Authority’s action was based on Article 10 of Decree-Law No. 16/2020, which prohibits “parasitic, fraudulent, deceptive or misleading promotional and commercial activities carried out in connection with the organization of national or international sporting or trade events without authorization from the organizers and aimed at obtaining an economic or competitive advantage”.

Following the fine, the company appealed to the Regional Administrative Court (TAR) of Lazio, which rejected the claim in ruling No. 13478/2023, deeming the Authority’s decision legitimate. The court emphasized that the advertisement as a whole was capable of confusing the average consumer, constituting a textbook example of ambush marketing.

The company then appealed against the ruling to the Supreme Administrative Court, arguing that there was no deceptive link between its brand and the sporting event and claiming a violation of Article 10 of the European Convention on Human Rights (ECHR). The company claimed that the campaign promoted inclusive values and that its removal amounted to an undue restriction of freedom of expression.

However, the administrative court rejected the alleged violation of the ECHR, noting that the sanction targeted the manner and context of dissemination, not the content of the message.

According to the Council, the ecommerce provider’s advertisement could have created a misleading association with UEFA Euro 2020 due to various factors, including the physical proximity of the billboard to the Football Village, the company’s logo on a football jersey, the depiction of the flags of the participating nations and the evocative slogan. Considered together, these elements created a communicative frame that was likely to mislead the average consumer into believing that the company was an official event partner.

As reaffirmed in the ruling and previously clarified in civil case law, ambush marketing:

• consists of associating a brand or product with a high-profile event without the organizer’s authorization.
• is considered misleading as it deceives the average consumer about the existence of sponsorship, affiliation or other connections with the holders of intellectual property rights which do not in fact exist. It constitutes a specific case of unfair competition contrary to professional fairness and falls under the general scope of Article 2598(3) of the Italian Civil Code; and
• allows the unfair competitor to abuse the image and brand of a company by associating it with a high-profile event without being bound by sponsorship, license or similar agreements with the event organizers. In doing so, the competitor benefits from the event without bearing its costs, resulting in improper exploitation and negative interference with contractual relationships between organizers and authorized parties.

The Supreme Administrative Court held that under Article 10 of Decree-Law No. 16/2020, an indirect association between a brand and an event can constitute an offence if it could mislead the public. The content doesn’t necessarily have to include official logos or protected names; what matters is the overall perceptual effect generated by the promotional message.

Author: Noemi Canova

 

Copyright protection for works of applied art: The Advocate General’s clarifications

With the opinion delivered on May 8, 2025, in the Mio and Konektra cases, Advocate General (AG) Szpunar added an important piece to the – still evolving – process of defining the authorship protection of works of applied art at European level. In fact, the two references for a preliminary ruling to the Court of Justice of the European Union (CJEU) provide an opportunity to clarify a number of unresolved issues, such as the criteria to be applied in the assessment of originality, the scope of protection offered by copyright and the relationship between copyright and design law.

These are rather thorny issues. They reflect the hybrid nature of works of applied art, which lie on the borderline between “pure” works of art and everyday objects, sharing traits with both categories without fully adhering to any of them. The category of “applied works of art” itself is far from uniform and homogenous, making it even more difficult to identify consistently applicable criteria for assessing their originality and, consequently, protectability.

Background

The first case, C-580/23, arose from a Swedish dispute between the company Mio AB and Galleri Mikael & Thomas Asplund Aktiebolag. It concerned the authorship protectability of the table series named “Palais Royal” which, according to Mio, didn’t meet the standards of originality required for authorship protection. The Swedish Court of Appeal for Trademarks and Patents referred four detailed questions to the CJEU for a preliminary ruling.

1. First of all, the CJEU was asked what the criteria are to establish whether a work of applied art can benefit from the protection granted to intellectual works under Articles 2 to 4 of Directive 2001/29/EC. In particular, what factors are relevant in assessing originality to understand whether a work of applied art reflects the personality of its author through free and creative choices. Should one focus on the elements related to the creative process and the author’s explanations of the choices actually made, or should one focus on the characteristics of the final work, and the artistic effect it generates?

2. Secondly, again with respect to the assessment of originality, the CJEU was asked what relevance should be attached to the following factors:

• the fact that the work includes elements commonly used in pre-existing designs;
• the fact that the work constitutes a variation of an already-known design or fits into some sort of existing trend;
• the existence of identical or similar works created before or after independently and without knowledge of the work in question.

3. The CJEU was also asked how assessing the degree of similarity between a work of applied art and an allegedly infringing work should be carried out to determine whether there’s an infringement of the author’s exclusive right under Articles 2 to 4 of the Directive. In particular, the question is whether the examination should be based on:

• the fact that the original work is recognizable in the contested work;
• the fact that the two works produce the same overall impression;
• or whether other criteria should be applied.

4. Finally, in connection with the previous question, the CJEU was asked what relevance the following circumstances have:

• the degree of originality of the work, for the purpose of determining the scope of protection;
• the fact that both works contain common design elements or represent variations of pre-existing or trendy designs;
• the existence of other identical or similar works produced independently.

The second case, C- 795/23, arose from a dispute between the Swiss company USM and the German company Konetra over the famous modular furniture system “USM Haller”, for which USM claimed copyright protection. The Bundesgerichtshof (German Federal Court) asked the CJEU to clarify:

1. whether there is a “rule-by-rule” relationship between design protection and copyright protection, and whether, because of their functional nature, works of applied art must satisfy a higher requirement of originality than other categories of protected works;
2. whether, and to what extent, the author’s subjective perception of the creative process is relevant, that is to say, whether, for the purposes of recognizing originality, it’s necessary for the author to be aware that they made free and creative choices when creating the work;
3. whether, in the assessment of originality, it’s permissible to consider elements subsequent to the creation of the work, such as inclusion in exhibitions or recognition by experts in the field.

 

The Advocate General’s opinion

The relationship between copyright and design protection

With respect to the existence of a “rule-exception” relationship between design protection and copyright protection, AG Szpunar considered that the court’s decision on this point must be negative, in the sense of holding that there is no “rule-exception” relationship between the two protections such as to justify the application of a stricter originality criterion for works of applied art, in view of their functional nature.

This position is based on the interpretation of the principle stated in the Cofemel judgment (C-683/17) often cited as a point of reference on the subject of cumulative protection between design and copyright. According to AG Szpunar, that judgment didn’t introduce any hierarchical or rule-and-exception relationship between the two protection regimes. On the contrary, paragraph 52 of the judgment was merely intended to remind national courts that there is no automatic link between granting protection under design law and copyright law and that the conditions for such protection, namely novelty and individual character on the one hand and originality on the other, must not be confused. In fact, an object doesn’t necessarily have to be original for the purposes of copyright law to be considered new and have individual character for the purposes of design law. On the contrary, although in practice this situation occurs less frequently, an original object may not have individual character if it’s not sufficiently distinctive, in terms of visual appearance, from existing forms.

It follows that it cannot be argued that, merely because they have a practical function, works of applied art should be accorded a higher level of originality than other categories of intellectual works.

Criteria for assessing originality

With regard to the question of the criteria to be taken into account in the assessment of originality, AG Szpunar proposed that this requirement, pursuant to Articles 2(a), 3(1) and 4(1) of Directive 2001/29, is only fulfilled when the work reflects the author’s personality, expressed through genuinely free and creative choices. Choices imposed by technical or functional constraints, or in any case lacking the capacity to give the work a personal imprint, are not considered creative. The mere possibility of making free choices is not sufficient: they must be concretely translated into an original result.

Elements such as the author’s intentions, sources of inspiration, the use of known forms, the possibility of similar independent creations or recognition by experts may be considered in the analysis of originality but are never decisive. It’s up to the judge to verify that the work has an original character, distinct from that required for protection as a design.

AG Szpunar also emphasized that originality doesn’t imply any aesthetic assessment: it’s not a question of taste or artistic merit, but of ascertaining the existence of an actual personal imprint. As to the creative process and the author’s intentions, only the result expressed in the work is relevant. Such subjective elements may be taken into account by the court only if they contribute to proving, in an objective manner, the originality of the work itself.

The evaluation of infringement

Regarding the criteria for establishing copyright infringement, AG Szpunar provided a response that, while remaining general with respect to the specificity of the questions posed by the referring court, reiterates certain fundamental principles. In particular, AG Szpunar proposed that, pursuant to Articles 2(a), 3(1) and 4(1) of Directive 2001/29, the court must verify whether creative elements of the protected work have been reproduced in a recognizable manner in the contested work. The mere absence of a different overall impression isn’t sufficient to prove infringement. The degree of originality of the work isn’t relevant to the finding, just as the mere possibility of an independent creation doesn’t exclude protection if the reproduction of creative elements is established.

Conclusion

AG Szpunar’s opinion, if adopted by the court, could have a significant impact on the interpretation of the notion of originality and the balance between design and copyright. It will be interesting to see what position the CJEU will adopt. Although the court very often follows the AG’s indications, in this specific case it would be desirable to receive more specific guidance on the criteria of originality and the assessment of infringement, otherwise the interpretative contribution is likely to remain limited, leaving unresolved points that need clarity.

Authors: Valentina Mazza, Maria Vittoria Pessina

 

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Innovation Law Insights is compiled by DLA Piper lawyers, coordinated by Edoardo Bardelli, Carolina Battistella, Carlotta Busani, Noemi Canova, Gabriele Cattaneo, Maria Rita Cormaci, Camila Crisci, Cristina Criscuoli, Tamara D’Angeli, Chiara D’Onofrio, Federico Maria Di Vizio, Enila Elezi, Nadia Feola, Laura Gastaldi, Vincenzo Giuffré, Nicola Landolfi, Giacomo Lusardi, Valentina Mazza, Lara Mastrangelo, Maria Chiara Meneghetti, Deborah Paracchini, Maria Vittoria Pessina, Marianna Riedo, Tommaso Ricci, Rebecca Rossi, Roxana Smeria, Massimiliano Tiberio, Federico Toscani, Giulia Zappaterra, Enila Elezi.

Articles concerning Telecommunications are curated by Massimo D’Andrea, Flaminia Perna, Matilde Losa and Arianna Porretti.

For further information on the topics covered, please contact the partners Giulio Coraggio, Marco de Morpurgo, Gualtiero Dragotti, Alessandro Ferrari, Roberto Valenti, Elena Varese, Alessandro Boso Caretta, Ginevra Righini.

Learn about Prisca AI Compliance, the legal tech tool developed by DLA Piper to assess the maturity of AI systems against key regulations and technical standards here.

You can learn more about “Transfer”, the legal tech tool developed by DLA Piper to support companies in evaluating data transfers out of the EEA (TIA) here, and check out a DLA Piper publication outlining Gambling regulation here, as well as Diritto Intelligente, a monthly magazine dedicated to AI, here.

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