La parodia di Zorro fu vera parodia? Ai posteri l'ardua (ma giustamente equilibrata) sentenza

In 2022, the Italian Corte di Cassazione addresses the issue of the parodic use of the fictional character of Zorro in the context of copyright law. The decision focuses on two lines of argument that have different assumptions and consequences: firstly, it recognizes the legitimacy of parody as a copyrightable work, provided that it demonstrates independent creativity; subsequently, it places parody among the exceptions and limitations to copyright under art. 70 l. a., defining its scope of application with reference to the concept of parody and the criterion of «fair balance» between copyright and fundamental rights as expressed in 2014 in the Deckmyn judgment of the Court of Justice of the European Union. While recognizing the autonomy and creativity of parody, the Court appears to lean towards a broader and more flexible definition of parody, leaving room for a case by case evaluation considering both the characteristics of the parody and the manner and context in which it is used, and establishing how to apply the right balance. Despite all assertions about the alleged exceptional nature of legal exceptions and limitations to copyright, this perspective brings us closer to the flexible dimension of the North American «fair use».