Original works of art are protected by copyright until they come into the public domain. But this does not mean they can then be used without any restrictions. Here we look at a few Italian court rulings on this subject.
Art is present in every facet of our lives. It is no longer confined to museum walls or catalog pages, we have become used to seeing classic canvases in advertising campaigns, on t-shirts and merchandising products, or parodied in memes on social media.
Examples range from Da Vinci’s enigmatic Gioconda depicted with silky shiny hair to promote a L’Oreal shampoo or completely bald as a symbol of the fight against cancer, to the Yves Saint Laurent Mondrian dress taking the bright colors and geometric shapes of the artist’s canvas to high-end fashion.
These commercial uses of works of art are now possible because the works have come into the public domain
Copyright confers exclusive rights to the owner of a work of art, allowing them to have control over its commercial use until it comes into the public domain. In the European Union this generally takes place 70 years after the author’s death, although it can vary between 50 and 100 years. This entry in the public domain makes the rights expire in some way, and they become assets freely available for use by the public at large, although the author’s moral paternity and integrity rights have to be respected at all times.
Article 14 of Directive 2019/790 on copyright and the Digital Single Market stresses that reproductions of visual works that have come into the public domain (such as photographs of those works) cannot be protected either, unless they are original in the sense that they are the author’s own intellectual creation.
The reason behind placing a time limit on the rights is to ensure a balance between protecting the interests of the author (and the author’s heirs or successors in title) and of society, from one angle by bringing access to culture, and from another, by promoting literary and artistic creation due to allowing artists, writers, composers or filmmakers to base themselves on existing works without needing to seek authorization.
Does this mean we can use any work in the public domain for commercial purposes without any restrictions?
Not in every country. In a few such as Italy or Greece, the protection of art has become a real matter of state, to the point of enacting laws restricting the use of works belonging to their national cultural heritage.
In Italy, the Landscape and Cultural Heritage Code requires the prior consent of the Italian cultural institutions, and the payment of certain fees for commercial uses of works belonging to their cultural heritage, regardless of whether copyright has expired. These laws aim to guarantee respect and conservation of their artistic heritage and to avoid having to see works belonging to their collective imaginary being altered or debased. Article 9 of the Italian Constitution even sets out a principle safeguarding the country’s historical and artistic heritage.
Here are some of the most prominent court rulings against people who have dared to use these treasures without authorization:
- Jean Paul Gaultier case: one of the most well-known cases was the successful lawsuit against the Jean Paul Gaultier fashion firm for reproducing Boticelli’s Birth of Venus in a capsule fashion collection in 2022 which was advertised as a tribute to art (read the news coverage here).
- GQ case: a more recent case concerned the GQ magazine cover, published by Conde Nast, reproducing a juxtaposition of Michaelangelo’s David on a male model holding the same pose as the sculpture. In 2023, a court in Florence ordered GQ to pay €50,000 in respect of material and moral damages, after finding that the montage debased or mortified the high symbolic and identity value of the work of art by subjugating it for advertising and editorial promotion purposes (see the judgment here). This is not the only successful legal action against unauthorized use of Michelangelo’s David. Take for example the case involving a company that made marble reproductions of classic sculptures using 3D scanning and printing techniques in 2022 (see the news coverage here) or another which reproduced the famous sculpture on unofficial tickets to museums in Florence in 2017.
- Ravensburger case: just a few months ago, Italy went a step further by trying to stop sales of a 1,000 piece jigsaw reproducing Da Vinci’s Vitruvian Man. Interestingly, the Venetian court ordered the German puzzle company Ravensburger to pay an amount of indemnification for products marketed both inside and outside Italy. The case took on an international tone following the judgment in March 2024 by a Stuttgart court which, after recognizing its international jurisdiction, declared that the Italian Heritage Code was not applicable outside Italy due to being incompatible with the territoriality principle in international law. Italy has already announced that it will appeal.
Garrigues Intellectual Property Department
