Florence court prohibits unauthorized commercial use of David's image

Michelangelo's David in Florence
Earlier this week the Florence Court of First Instance (Tribunale di Firenze) issued an important and interesting decision [not yet available], which has been widely reported by newspapers in Italy [eg herehere, here, here] and abroad [eg here]

The Avvocatura dello Stato, this being the body responsible for advising and representing the Italian state (including in legal proceedings), sued a company, Visit Today, before the Florence Court of First Instance, seeking to obtain a decision that would prohibit this from selling unofficial tickets for the Galleria dell'Accademia in Florence, also using brochures and materials depicting what is probably the most famous guest of this beautiful museum: Michelangelo's David.

The Florence court sided with Avvocatura dello Stato, and prohibited Visit Today from using the David's image for commercial purposes. 

On what grounds?

I have received several messages asking what the possible grounds for a decision of this kind would be, since copyright protection in this artwork has clearly lapsed ... well, at least economic rights.

It is in fact worth recalling that in Italy moral rights protection is perpetual and also the State [or rather, the Head of Italian Government: see Article 23 of the Copyright Actcan enforce an author's own moral rights. Similarly to other droit d'auteur jurisdictions, Italian courts have interpreted moral rights provisions generously, with the result that the scope of the right of integrity is rather broad.


A recent visitor
of Galleria dell'Accademia
This said, the main ground for the decision appears to have been [as I mentioned, the decision has not been published yet] the Italian Cultural Heritage Code, also known as Codice Urbani [see here for a recent discussion of Italian freedom of panorama and its relationship with the Code; see also here for an analysis of the decision].

Article 106 of the Code sets the general principle that for cultural heritage items subject to their own control, the State, the various Italian regions and local public bodies may allow individual applicants to use such items for purposes compatible with their own cultural value, eg by means of acts of reproduction. 

This means that for-profit uses of cultural heritage under the responsibility of Italian public administration are not generally free: instead, they are subject to preventive authorization. 

Articles 107 and 108 of the Code provide that the competent public administration may allow third-party uses of an item - 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 the item. 

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. 

A surprising decision? Not really

The Florence court's decision, therefore, is not surprising. It is not the first time, in fact, that improper and unauthorized commercial use of Italian cultural heritage has been at the centre of litigation or ... threats of litigation. With specific regard to Michelangelo's David, readers will for instance remember the rather recent case of the 'armed David' [here]

Similarly, lawyers who advise clients in the advertising business regularly remind them that the Cultural Heritage Code may prevent them from using works that, otherwise, would be in the public domain from a copyright standpoint.


A Kitten ... but actual David's legs?
What is at stake

When visiting Italian cities like Florence, Rome, and Venice it is very frequent to see long queues outside museums and monuments. Invariably frequent is also the sight of vendors (known as 'bagarini') offering tickets - at prices higher than the official ones - to people standing in the queue, alleging great bargains and promising to let them skip the queue (admittedly a rather attractive perspective when you are queuing under the sun and facing a temperature of 38°C). 

However, visitors are also often victims of scams. 

The reason why the Avvocatura dello Stato brought the present proceedings was indeed also to set a 'precedent' and reduce, and possibly eliminate, the problem of bagarini.  

Commenting on the Florence decision, the Italian Minister of Culture stated that this is a good step in the direction of repressing the unauthorized sale - including over the internet - of tickets for Italian cultural heritage sites and the improper use of cultural heritage items. He added that this decision "is an important step forward for the protection of consumers and the protection of masterpieces held in Italian museums." The Cultural Heritage Ministry - he added - will continue to monitor improper uses and take action in all cases that infringe relevant provisions in the Cultural Heritage Code. 

Although the decision is of course limited to the defendant's activities, according to the director of Galleria dell'Accademia, Cecilie Hollberg, the outcome will serve as a model for all the museums that face the problem of unofficial ticket vendors who sell tickets at a higher price, thus scamming wannabe visitors.
Florence court prohibits unauthorized commercial use of David's image Florence court prohibits unauthorized commercial use of David's image Reviewed by Eleonora Rosati on Saturday, November 25, 2017 Rating: 5

7 comments:

Uncle Wiggily said...

If this turns out to be about moral rights, it will reinforce the worst xenophobic instincts that the Americans have about this worthy concept. But it's worthy only if not pushed to absurd limits... such as trying to extend economic rights and the copyright term into perpetuity. Life + 70 is bad enough. This should be overturned on appeal - or someone should take it to the CJEU. I can't believe it would survive freedom of expression challenges under Article 10 of the European Convention on Human Rights https://goo.gl/rqh9R9 or Article 11 in EU Charter of Fundamental Rights https://goo.gl/5qixiU

THE US anon said...

What I find interesting is that not all sovereigns carry this same "moral rights," and as far as I know, there is no treaty that expressly requires other sovereigns to enforce "moral rights" (as opposed to copyrights).

Uncle Wiggily is quick to accuse Americans of "worst xenophobic instincts" and labels "moral rights" as "worthy."

There is zero need (or basis) for such denigration.

Respect the differences enjoyed by Sovereigns please.

Paul Magrath said...

You've put the link to the wrong link for the museum - easily done, as they all look "official". This is the correct one (I think): http://www.galleriaaccademiafirenze.beniculturali.it
I look forward to the published decision and a full set of reasons from the court. In the meantime, thanks for explaining the relevant Code.

Eleonora Rosati said...

Thanks Paul - link corrected!

@US anon: what about Article 6bis Berne Convention?

THE US anon said...

Eleonora,

Is that particular article more than a mere treaty element?

By this, I mean that just because something is in a treaty does NOT mean that it has been processed (further, as is required to be a US law).

It is worth noting that the Berne treaty has been processed piecemeal into US law, so individual treaty elements may STILL not have any force of law in the US.

Uncle Wiggily said...

The USA very cleverly managed to get moral rights exempted from the dispute settlement provisions of TRIPS. See Article 9.1:

Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

When it comes of IP protection, the USA believes in "do as we say, not as we do" when it comes to respecting creators and high levels of IP protection.

So, the USA can and does ignore the moral rights requirements of TRIPS and Berne. The late Senator Kennedy at least managed to get some moral rights for visual artists enacted.

BTW, the USA remains in flagrant non-compliance with the 17+ year old WTO ruling on 17 USC 110.

Uncle Wiggily is the first to respect sovereignty. But hypocrisy is something very different.

I think that Florence has no case here for moral rights, even if such rights are perpetual in Italy, because there's obviously no distortion or mutilation. But the fact remains that the USA has a very bad attitude to this important doctrine.

Anyway, let's wait for the ruling and Eleonora's expert analysis.

THE US anon said...

It is entirely a sovereign decision as to which parts of a treaty to enact into law.

Your "feelings" otherwise, Uncle Wiggly, is not respecting that power.

I "get" that you don't like it.
I "get" that you would have the US sovereign choose differently.

I even "get" that you feel this choice to not fully enact "moral rights" is "hypocritical," but that feeling is nothing more than a feeling, and there is nothing at all hypocritical about the choice.

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