Is it a breach of the Italian Cultural Heritage Code to feature on GQ a model posing like Michelangelo’s David? Yes, says Florence Court

As IPKat readers will be aware having this blog covered a number of cases already [see here for a compilation of Katposts], the Italian Cultural Heritage Code (ICHC) restricts the unauthorized commercial use of images of assets belonging to this country’s cultural heritage.

This is so irrespective of the copyright status of the asset in question.

To exemplify: in the past, Italian courts have considered it unlawful to reproduce the image of Michelangelo’s David (clearly, a work that is no longer protected by copyright) on unofficial tickets for the Florence museums [here and here].

Now, there is a new decision of the Florence Court of First Instance (sentenza 1027/2023) which poses a different and intriguing kind of question: Is it a breach of the ICHC to display, not the actual image of a cultural heritage asset, but rather an image that evokes such asset?

More specifically, is the image below, which clearly evokes Michelangelo’s David, an undue use of David’s image?

Let’s see more in detail what happened.

Background

In spring 2020, GQ Italia asked the Galleria dell’Accademia - that is: the Florence museum where David is held - for permission to use the image of David on the cover of a then forthcoming issue of the magazine.

The director of Academia granted permission to use the image of David, upon condition that (i) no alteration of the image of David be undertaken and (ii) the same issue contain an article about the museum and Michelangelo’s work.

In the end, the negotiations provided fruitless and no agreement was concluded. This said, the July-August 2020 issue of GQ Italia was released with the image above as a cover.

The magazine cover, which features engineer, former postgraduate teaching assistant at University College London, and model Pietro Boselli, is described in the following terms by Boselli himself on his Instagram account:

Instead of appreciating the eventual result, Accademia sued the publisher of GQ, Condè Nast, for breach of both Articles 107 and 108 ICHC. Accademia also requested EUR 80,000 in damages.

The decision

The Florence court considered that, like the Italian Civil Code acknowledges an image right for natural persons (Article 10), such a right would also exist for cultural heritage assets.

The legal basis for such an image right, which stems from Article 9 of the Italian Constitution (specifically, Article 9(2) providing for the protection of Italy’s historical and artistic heritage), is Articles 107 and 108 ICHC. These provisions vest the competent public administrations (in this case: Accademia) with the competence to allow third-party uses of assets - in this case: the image of David - belonging to Italian cultural heritage, subject to the payment of royalties to be determined on the basis of inter alia the type of use requested and the possible economic gain that the user would obtain from the use of the asset in question.

The court stressed that it is the language of the ICHC itself which posits the existence of an image right for cultural heritage assets, by referring to the “decorum” of a cultural heritage asset. In addition, the Italian Supreme Court has in the past acknowledged an image right of legal persons, e.g., companies.

Coming to the merits of the dispute, the Florence judge concluded that the realization of Boselli’s picture entailed a reproduction of David’s image for commercial purposes and, therefore, was in breach of the ICHC.

As to the economic damages, the court deemed it appropriate to refer to the relevant fees for the use of Italian cultural heritage and thus award EUR 20,000. It also awarded EUR 30,000 to compensate for the non-economic damages suffered by Accademia.

Comment

If there is something one can be sure about is that the Italian approach to the protection of both image rights and cultural heritage is an expansive one. I shall not comment further on the ICHC here, as I have already done it in past posts (see, e.g., here).

What is interesting about this latest case is the circumstance that the court was adamant that an image right for cultural heritage would not only exist but could be also triggered when the use at hand results in an image that does not reproduce the image of the cultural asset at issue. In other words: protection seems to be available also when the image is used as part of a broader creative process and, it appears, also when the image of the asset in question is more simply evoked.

In this case, the GQ cover was realized by superimposing the image of Boselli posing like David and the actual image of David. Ultimately, it is Boselli's face and body, rather than David's, that is visible on the cover.

All this said, the decision of the Florence court is not entirely surprising. In the past, in fact, Italian courts have considered that a person’s image right could be breached by simply evoking that person’s image. This was, for example, the case of a commercial featuring a model dressed up like Audrey Hepburn’s character in Breakfast at Tiffany’s. The Hepburn estate sued for breach of post-mortem image rights and the Court of Milan agreed with them [IPKat here]: evoking someone’s image may breach their image rights.In this sense, the outcome of the Condè Nast/Accademia dispute appears to be roughly in line with this earlier case law. But a key question remains: is the rationale of image rights such that the resulting protection can be invoked not just by natural persons, but also by legal persons and even cultural heritage assets? It may all sound a bit stretched ... or may it not?

[Originally published on The IPKat on 6 June 2023]