Over a year and a half ago, the Italian Ministry of Culture (MiC) won the dispute brought in front of the Venice Civil Court concerning the Vitruvian Man. In that instance, the Italian court held that the Vitruvian Man, an artwork created by Leonardo da Vinci around 1490, belonged to Italian Cultural Heritage and, as such, its reproduction as a jigsaw puzzle by Ravensburger, a German game company, was infringing the Italian Code of Cultural Heritage (CHC). The argument of the court was that, by failing to request the proper authorisation to use the reproduction of the work, the German company was liable for banalising a culturally important work of art.

Since the Venice Court issued the much-discussed decision, there have been several developments concerning this unique aspect of Italian cultural heritage law, and this article aims to analyse the most relevant ones. The article will conclude with the consideration of the most recent development, the interim decision of the Stuttgart Court in relation to the Ravensburger claim and the application of the Cultural Heritage Code outside of Italian territory.

The 2023 Guidelines for the Reproduction of Cultural Goods

A few months after the Vitruvian Man decision was handed down, the MiC issued, in the form of a Ministerial Decree, a list of guidelines regarding the determination of the minimum concession fee, which is required in the case of commercial reproductions of cultural objects under article 108 CHC. These guidelines were published in light of the need for clarification in relation to the instances in which a cultural object can be reproduced without payment of a fee. As frequently asserted by both Italian courts and the Ministry of Culture, this Ministerial Decree reaffirms that the MiC should approve every potential commercial reproduction of Italian cultural heritage in accordance with article 107 CHC.

These guidelines also confirm that the free reproduction and the communication to the public of cultural goods are allowed for personal use, and when they do not involve physical contact with the work, the use of tripods (or other professional tools) or subjecting the same cultural object to flashing lights.

However, criticism has been raised, especially by research and academic institutions. The issue was initially brought up by ICOM Italia, a few weeks before the final text of the guidelines was issued. In addition, when these guidelines were officially introduced, stakeholders noticed new criteria that were not included in the CHC. The main sector affected was the academic one which, until then, had been exempt from articles 107 and 108 CHC. These institutions have argued that these guidelines have had a significant negative impact on scientific research and on the valorisation of cultural heritage, as they penalise the editorial system, the National Strategy for Open Science (Piano Nazionale Per la Scienza Aperta) and the National Strategy for the Digitalisation of Cultural Heritage (Piano Nazionale per la Digitalizzazione del Patrimonio Culturale).

Further to this, the Italian Association for the promotion of Open Science (Associazione Italiana per la promotions della Scienza Aperta) requested the Government to amend both the guidelines and the CHC in order to allow for the free reproduction of cultural heritage for scientific and research purposes. In response the Corte dei Conti, the Italian court of auditors, agreed in this regard and stated that setting a price list for the reproduction of cultural goods does hinder scientific and academic research, open access and the public enjoyment of Italian cultural heritage. As a consequence, in March 2024, new guidelines (Ministerial Decree 108) were issued by the MiC, bearing several relevant amendments, including measures to favour open access and the removal of the requirement of the concession fees when it comes to: scientific and academic publications, educational magazines and volumes, exhibition catalogues, newspapers and periodicals and open access publications.

GQ and Michelangelo’s David

Merely a week after the publication of 2023 guidelines regarding the determination of the concession fees applied to the reproduction of cultural heritage, the Florence Civil Court issued a groundbreaking decision on the reproduction of cultural heritage. The subject of the reproduction in question was not a new one. Two previous disputes have concerned unauthorised reproductions of Michelangelo’s David, but for the first time a court, in addition to recognising the unlawful commercial exploitation of a reproduction of a cultural object, granted image rights to an inanimate object in accordance with Article 10 of the Italian Civil Code, which allows an individual, or a piece of cultural property (as interpreted by the Court), to object to the publication of their image.

The plaintiffs, the MiC and the Gallerie dell’Accademia of Florence, filed a lawsuit against the publisher, Condé Nast, in relation to the use of the lenticular reproduction of David and its juxtaposition with the image of a male model on the cover of Condé Nast’s GQ magazine.

In the case at hand, the Court explained that image rights found its normative foundation in Articles 107 and 108 CHC due to the historical, cultural and artistic importance of cultural property for Italian tradition. By doing so, the Court merged public law (cultural heritage law and constitutional law, as the importance of cultural property is highlighted in Article 9 of the Italian Constitution) and private law (Italian Civil Code).

Latest Developments: The Decision of the Stuttgart Court on the Vitruvian Man

Over a year after the decision of the Venice Civil Court, the Court in Stuttgart, Germany, handed down the interim judgment concerning the enforceability of the Venice judgment. The Court was asked the following questions: whether the Italian CHC was applicable outside the Italian borders and whether the MiC can claim damages to a foreign company that also operates outside of Italy.

Indeed, Ravensburger filed a lawsuit against the MiC and the Gallerie dell’Accademia of Venice at the Stuttgart Regional Court in order to assert that the obligation to pay compensation only exists within Italy. The Court sided with the German company on the basis of the argument that every national legal system is limited to the respective national territory, in accordance with the territoriality principle, a generally recognised principle in international constitutional law that represents the expression of the sovereignty of each state.

This judgment was highly anticipated, because the German company had raised an interesting claim in addition to the territoriality principle, and in the past few months many had assumed that the German Court, with this judgment, would have provided an answer to a very debated question: is the Italian Cultural Heritage Code in violation of EU copyright law when it comes to asserting financial rights arising from the reproduction of centuries old works of art?

Disappointingly to many, no mention of the very debated compatibility between Articles 107 and 108 CHC and Article 14 of the Copyright in the Digital Single Market Directive (2019/790) was made. The Court only briefly mentioned the question of whether the Italian CHC created a copyright term of protection longer than the 70 years provided by the Term of Protection of Copyright Directive (2006/116/EC), by stating that the issue was still open.

On this note, however, while, in similar cases, the CHC provides for financial rights very similar to the financial rights provided by copyright, it is necessary to remember that cultural heritage law and copyright law cover two different legal disciplines that have different scopes and subject matters. The first one protects how cultural property is exploited and the beneficiaries are the State and the communities that enjoy it, while the latter generally grants exclusive rights to the author (or right holder) of an intellectual work for a limited period of time.

Conclusion

We seem to still be far away from reaching an end to this unique and heavily disputed aspect of cultural heritage law, especially considering that just a few days after the German Court rendered its decision on the reproduction of the Vitruvian Man, the Italian Ministry of Culture expressed their desire to appeal that decision.

However, given the various recent developments in this field, it can be argued that some of the changes and potentially conflicting arguments are due to a wide range of different aspects. On one side, we have the interests linked to open access and free use of works that have been created centuries ago, while on the other side, it is possible to see the involvement of the Italian Government and the Ministry of Culture in the recognition, as a public order principle, of the protection of the Italian cultural heritage from banalisation and over-commercialisation.

Image Credits:

Leonardo da Vinci, Vitruvian Man, 1492, Gallerie dell’Academia, public domain via Wikimedia Commons.

Michelangelo, David, c. 1501-1504, Gallerie dell’Academia, photo by Jörg Bittner Unna, 2016, CC 3.0 via Wikimedia Commons.