The perpetual copyright protection of Italian cultural heritage: bypassing the public domain

Posted on: December 2, 2022 by

In recent weeks, Botticelli’s Birth of Venus appeared on the headlines of some of the most important news outlets, due to the allegedly ‘unauthorised’ commercial use of the famous masterpiece. The fashion house Jean Paul Gaultier is facing a suit for damages that could exceed £88,000 (€100,000) brought by the Uffizi, the oldest Florentine museum, and holder of the most important Renaissance collection in the world. While this is one of the very few lawsuits brought against a fashion brand for reproducing an Italian Renaissance masterpiece on articles of clothing, the reproduction of Italian artworks is not uncommon. In another recent example (discussed below), high street fashion brand Zara displayed the blond head of the Venus and other details of the painting in garments in its Fall 2022 collection.

Botticelli’s iconic artwork, Birth of Venus, ca. 1485

As followers of copyright law will be aware, the Birth of Venus is a work which has long been out of copyright protection, being in the public domain both under the Berne Convention 1886 and EU legislation. As such, is it not surprising that the Italian museum would have decided to sue the French designer?

The grounds for such a lawsuit arise from a peculiar piece of Italian legislation on the protection of cultural heritage, the Italian Code of Cultural Heritage (Codice dei Beni Culturali e del Paesaggio)(CHC). This Code allows all Italian public cultural heritage institutions, such as the Uffizi, to overlook the fact that the masterpiece in question was created centuries before modern copyright laws were even enacted and bring legal action for infringement of intellectual property rights whenever there is an unauthorised use or reproduction of their artworks and cultural objects. Indeed, whilst most copyright laws around the world provide for a protection that lasts between 50 and 100 years, the approach in Italy is somewhat different. Under the Italian Code, a derogation from the usual period of protection is afforded to works considered to be particularly important for the cultural heritage of the country to protect against ‘unwelcome uses’ which might threaten their cultural, artistic and moral values.

The works covered by these provisions (as defined in Article 10 of the CHC) expressly include the entire collections of publicly-funded cultural organisations such as the Uffizi Galleries, as well as some works held in private collections but exhibited in publicly accessible spaces. The Code requires authorisation from the institution which holds the artwork in question for any intended reproduction. Fees are payable too, at a level to be determined in accordance with the specific circumstances (including, for example, the nature of the intended use, the reputation of the applicant and the target audience or customer base).

The application of this law is not without criticism, not least because it could be seen to give museums a monopoly over cultural property that should belong to the public, who, some would argue, should be able to  use it freely and without restriction.

While in the case of Jean Paul Gaultier, there was no acknowledgement made to the right holder, a recent example of how these measures were observed by a fashion brand can be identified in the Zara Autumn ’22 collection mentioned above. The Spanish brand’s recently published catalogue included two rather interesting pieces of clothing of relevance in the current context. These were: firstly, a corset reproducing a patchwork of different details of the Uffizi painting, including Venus’ face in the forefront; and secondly a white oversize t-shirt featuring an image of the face and strawberry blond hair of the Botticellian goddess of love under the wording: “LA NASCITA DI VENERE BOTTICELLI”. The description of both garments on Zara’s sales website included the following: “Birth of Venus © 2022 Photo Scala, Firenze” indicating the license holder to whom rights have been granted by the Uffizi. The granting of rights to a commercial partner is common practice for Italian museums and indeed, is specifically permitted under the Italian law (Art. 109 CHC). This provision allows such companies to create a database of official images and to set applicable fees, effectively streamlining the process for commercial licensing. Personal use for purposes of study, is permitted under another exception (Art. 108(3) CHC) which also allows for use by public bodies for the promotion of cultural heritage though the Italian courts are very reluctant to apply this exception if profit is involved.

Given that court documents are not yet available, we can only speculate on the basis for the claims against the fashion industry’s enfant terrible by the Uffizi. Possible considerations  could potentially include: the influence which association with the sometimes unconventional and far from ‘main stream’ brand could have on the reputation of the masterpiece; the featuring of the Venus image (or parts of it) in a clothing range which also depicted other artworks with little or no association with Botticelli’s masterpiece; or perhaps a procedural point, namely that, according to reports, a formal letter of notice sent by the museum in April 2022 outlining the terms applicable to reproductions of the work elicited no response from the fashion brand. Prior case law suggests that the Court may take a robust approach, protecting the museum’s rights under the Code. This is suggested by a recent case involving the reproduction by a travel agency ofMichelangelo’s David in an advertising campaign. Here the court was prepared to grant an injunction, prohibiting further use of the image for commercial purposes amongst other measures.

It will be fascinating to see how the Italian courts will respond in this case, one of the first to pit a museum against a major fashion brand on the basis of the Cultural Heritage Code. If the outcome in prior cases is anything to go by, we may again see the protection of cultural heritage in Italy posing a to challenge the concept of public domain. In any event, we will certainly follow the progress of the current case with interest.


Image credit: Wikimedia commons via The Yorck Project (public domain/fair dealing);