Exclusive rights in classical art works: the “armed David” case

Michelangelo’s David is one of the most famous sculptures of Italian Renaissance.  Created in the first years of 1500, it is universally acknowledged as one of the most symbolic Italian art works. It represents the Biblical hero David some moments before his victorious fight with the Philistine giant Goliath. With head up and a proud look, David holds the weapon with which he defeated Goliath: a stone in its right hand and with a sling in the left hand. Since 1873, the statue has been displayed in the wonderful Accademia Gallery, Florence.

Like most icons, David has often been used for advertising by various companies. Months ago, for example, Illinois firearms company ArmaLite Inc. launched a communications campaign to promote its most successful product, a rifle called the “AR-50A1”. With doubtful taste and lucky commercial intuition, one of the promotional pictures portrayed Michelangelo’s David in the Accademia Gallery, holding the Armalite rifle instead of stone and sling. The picture depicts a visitor admiring the statue and the payoff reads: “AR-50A1: a work of art”.  The picture was apparently given a limited diffusion within some specialised US reviews and on Armalite’s social media profiles like Facebook and Twitter [few hours ago, these images have been removed and the company apologised for the campaign].

On 7 March, the Italian magazine L’Espresso came across the armed David and published it. This opened a Pandora’s box. The Italian Minister of Culture, Dario Franceschini, furiously tweeted:

“The promotional image of the armed David offends and breaks the law. We will take action against the US company, which have to withdraw the campaign immediately”.

The Director of the Accademia Gallery and the person responsible for culture in the Florence Municipality confirmed that they would send “a formal notice to the company to stop using the image”, while the Superintendent of the Florentine Museums added

“the law says that the aesthetic value of the work cannot be altered. In this case we are faced with an act that is not only in bad taste but is completely illegal”.

Finally, the person responsible for culture in the Florence City Council proposed demanding that Armalite pay

“an astronomical sum: a billion dollars, which could be used to restore Pompeii, or finance all the maintenance work needed on Italian museums”.

Meanwhile, the news started to spread around the world [here, here, here, here, here, here, …], transforming ArmaLite’s embryonic publicity into a global promotional campaign, utterly free of charge.

Some emailed and tweeted the IPKat to ask whether there was anything genuine and legally feasible in the usual, unprecedented claims of Italian politicians against the armed David campaign [which, as other media failed to report, ended last July and is far behind us].

The answer could likely be: no.

Armless David #1

First, copyright economic rights could hardly be called into question. Indeed, the rights of reproduction and modification both of Michelangelo’s statue and of the Accademia Gallery on the background of the armed David lapsed quite a long ago, since Michelangelo Buonarroti and Emilio de Fabris (the architect of that part of the Accademia) shuffled off their mortal coils long even before the Berne Convention.  

  

Perhaps moral rights could be triggered in this case and, namely, the right of integrity provided by Articles 20 and 23 of the Italian Copyright Law. After the author’s death, the standing to sue  in order to prevent dishonouring modifications of a work lies upon the author’s heirs. Theoretically, a great-great-great-great-great-great-great-grandson of Michelangelo could thus take action against ArmaLite, alleging that the armed David jeopardises the honour and reputation of his or her ancestor. It would be such an exciting action with a Machiavellian investigating phase, half dedicated to digging into the genealogical tree of the plaintiff and half to exploring whether Michelangelo would have found it disgraceful that David faced Goliath with a more effective weapon. “If the public interest should so require”, adds Article 23(2), claims based upon the moral right of integrity could also be raised by the Italian Prime Minister. Does the public interest so require?

Armless David #2

From another standpoint, if ArmaLite used existing pictures to create its masterpiece, there might have been a copyright infringement of the original images. However, the armed David appears to be a blatant Photoshop-made copy and paste of two documentary images [one of the David and the other of the background] like thousands of others that can be found on the internet: it is hard to consider them original and even harder to identify the authors. Alternatively, the original picture could have been taken by one of the ArmaLite guys during his or her Florentine vacations. In this case, there could be an issue of breach of contract, since the Accademia Gallery does not allow taking pictures of the art works it hosts without previous authorisation. But who will tell this to the armed guys?

By contrast, the armed David could well be considered eligible for copyright protection. Indeed, a certain degree of creative freedom appears necessary to equip the Biblical hero like a marine and depict the back of a mysterious visitor who is watching it [and why from his back, wonders Merpel? Which insightful message is this trying to communicate? Is the visitor baffled? Is he astonished? Proud? Admired? Lost? That’s for the art critics to discuss]. In any event, it is unlikely that ArmaLite decide to enforce its exclusive rights to the detriment of tons of free and unexpected publicity.

David of Michelin

Setting copyright aside, the Italian Code of Cultural and Landscape Heritage provides for ancillary rights regarding classical art works owned or hosted by Italian public cultural bodies [for cultural reasons, no English version of the Code is available]. Article 106 of the Code lays down the general principle that “the Ministry of Culture, regions and other public bodies may allow single requestors to use the cultural goods that they hand over for purposes compatible with the latters’ cultural destination” [which could hardly be found in ArmaLite’s use of David, bets Merpel].  Among these uses, Articles 107 and 108 of the Code continue, the Ministry of Culture, regions and other local public bodies

“may consent the reproduction … of the cultural goods that they hand over [under] royalties and/or a lump sum”

to be defined on the basis of the kind of use in which the copy will be involved and of the economic benefits that it may lead to the copier, while no consideration is given to personal reproductions or research purposes. Under Article 178 of Code, whoever reproduces a work without due authorisation and for profit or is anyhow involved in the distribution of unauthorised reproductions in the Italian territory may be convicted to jail [from three months to four years] and fined [from 103 to 3,099 Euro]. This amount could be increased if the unauthorised reproduction takes place within a commercial activity

Although in a recent case the Italian Supreme Court held that the notion of “reproduction” used in the Code is the same as that used in Copyright Law [the case involved the reproduction of a “cultural good” constituted by an ancient skull; decision No 9757/2013], do not forget that we are not talking about copyright. Indeed, the Code of Cultural and Landscape Heritage provides for a national ancillary right that could hardly be claimed against unauthorised reproductions that did not take place in Italy. Ostensibly, this is the case of ArmaLite, which created the armed David in the US and distributed it only there, to a limited circle of specialised weapon-lover reviews. The circumstance that the Illinois company transmitted the contested image on its social networks and made it available for downloading on its website could unlikely amount to an act of reproduction in Italy, and the Code of Cultural and Landscape Heritage does not vest Italian cultural bodies with the right to prevent acts of making available to the public.

Can ArmaLite therefore sleep in peace? Merpel would not be so sure. Indeed, media less careful than the IPKat failed to report that another image composing the promotional campaign “A work of art” depicted a weapon-lover contemplating another rifle between two other copyright-lapsed icons of art, Grant Wood’s American Gothic  and Leonardo da Vinci’s Mona Lisa, respectively exhibited at the Art Institute of Chicago and at the Louvre of Paris.  Do any of our French or American readers have a clue as to how to make this case even more international and keep promoting ArmaLite for free?

Katpats are due to our many readers to emailed us about this item, as well as to Eleonora for her contribution to this post.