Yesterday the news broke that the Uffizi museum in Florence is taking legal action against Jean Paul Gaultier over the unauthorized reproduction of the stunning and well-known Renaissance painting Birth of Venus by Sandro Botticelli in garments and accessories that are part of the Gaultier’s spring/summer 2022 Le Musée capsule collection.
As the name indicates, Le Musée intends to celebrate art. It features reproductions of paintings by classic masters, including Botticelli’s.
The Florence museum, where Venus is held, was nonetheless unimpressed with this homage.
Jean Paul Gaultier's Le Musée
The Italian Cultural Heritage Code: from unofficial museum tickets to Pornhub
As I wrote on this blog a few years ago in connection with another dispute involving Renaissance art (to be more specific: the image of Michelangelo’s David as reproduced on unofficial tickets to the Florence museums: here and here), the CHC establishes the general principle according to which for-profit uses of cultural heritage under the responsibility of Italian public administration are subjected to a requirement of preventive authorization.
Articles 107 and 108 CHC provide that the competent public administration may allow third-party uses of an object - including an artwork - belonging to Italian cultural heritage, subject to the payment of royalties to be determined on the basis of - among other things - the type of use requested and the possible economic gain that the user would obtain from the use of that object.
This said, authorization is not required in each and every case. Article 108(3-bis) clarifies in fact that non-profit uses of cultural heritage items for purposes of study, research, freedom of expression or creative expression, and promotion of the knowledge of cultural heritage do not require authorization.
Besides the case of unofficial tickets, in the past the Italian state has relied on the CHC to prevent commercial advertisements of rifles in which Michelangelo’s David was portrayed in full armour. The Uffizi museum itself is not new to invoking the application of the CHC: for example, quite recently, it threatened Pornhub with legal action over the latter’s announcement that it would make ‘live’ versions of some of the paintings exhibited in inter alia the collection of Florence’s Uffizi museum as part of its ‘Classic Nudes’ series.
Not a copyright dispute … and the non-role of Article 14 of the DSM Directive
In sum: the CHC provides a way to control for-profit reproductions of Italian cultural heritage, irrespective of their copyright status (it is in any case worth recalling that under Italian copyright law moral rights protection is … perpetual).
Someone has asked me if the Uffizi's claim could be nonetheless neutralized by relying on the Italian transposition of Article 14 of the DSM Directive, which provides that “when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation.”
The answer is in the negative for two reasons.
Secondly, because Article 14 of the DSM Directive / Article 32-quarter of the Italian Copyright Act is about the protectability of the reproduction of a public domain artwork, not a situation like that one at issue here, that is the actionability of the unauthorized reproduction of a public domain artwork.
Indeed, unless the Uffizi demonstrated that Jean Paul Gaultier had derived the Le Musée images from protectable reproductions of Birth of Venus owned by the museum, either provision would be irrelevant to the ongoing dispute.
To conclude: this new CHC-based dispute shows once again that, when cultural heritage is at issue, Italian authorities – including museums like the Florence ones – are very keen to invoke its application ... irrespective of any IP-related considerations.
[Originally published on The IPKat on 11 October 2022]