[Guest Post] [Conference Report] – Botticelli v Warhol – 2025 Cultural Heritage Conference in Florence (Day 2)

While Day 1 focused on both the museum perspective and the core aspects of the Italian Cultural Heritage Code (“ICHC”) and its application, Day 2 turned toward the practical, territorial applicability and the more IP-related implications of these issues. Here’s what former Kat Chiara Gallo writes:

[Conference Report] – Botticelli v Warhol – 2025 Cultural Heritage Conference in Florence (Day 2)

by Chiara Gallo

Panel 1: Is cultural heritage ever in the public domain?

Merpel channelling her inner

Botticelli’s Venus

(Illustration by Arianna Gallo)

Structured around three main themes the panel, moderated by Eleonora Rosati, was opened by Gordon Humphreys, who considered how trade mark law interacts with cultural heritage. He focused on a number of cases in order to describe how artworks and intellectual creations had been registered as trade marks or formed part of a trade mark registration application (i.e. Dr. No, Batman Mask, Shield Mark/Kist, PICASSO/PICARO). The discussion eventually led to the analysis of the landmark EFTA Court case concerning the attempt to register Gustav Vigeland’s artworks as trade marks [the IPKat has discussed the decision here] and how the court considered absolute grounds relating to inter alia public policy and morality.

Alessandro Cogo addressed the ambiguous legal nature of the rights created under the ICHC, questioning whether the regime it creates genuinely pertains to IP or merely resembles it. The ICHC does not regulate the activity of reproduction or use of cultural heritage works. Courts, including in the Velásquez decision [more on The IPKat here], have started recognising rights over cultural heritage in a manner that resembles IP. In relation to this, commentators have stated that this should be pre-empted by EU provisions, including Article 14 of the Digital Single Market Directive.

1st panel

(Photo by Chiara Gallo)

To conclude the panel, Cristiana Sappa explored the implication of the Open Data Directive in the context of digital cultural heritage, by focusing on the distinction between access and reuse. Sappa outlined some of the legitimate purposes for reuse, including preservation, educational purposes, research, construction and urban evolution, and entertainment. She also noted that the question today is not any longer “how much copyright exists in cultural heritage”, a question more prevalent in the 1990s and early 2000s, but rather “how much space remains for accessing and reusing digital cultural heritage within the boundaries of copyright law?”.

Panel 2: How far? The territorial scope of cultural heritage protection

Massimo Sterpi opened the panel considering the territorial boundaries of Italian cultural heritage law. He stated that while the ICHC frames reproduction as part of a legitimate administrative interest, administrative law is inherently territorial and these laws and judgements cannot be exported and enforced across borders, as covered by EU Regulation No. 864/2007 (Rome II). He referenced the judgment of the Venice Court regarding the Vitruvian Man case, which, however, suggested that Italian cultural protection rules could be applied internationally. This overreach contradicts international law, and the main benefits linked to the circulation of public domain content.

2nd panel

(Photo by Chiara Gallo)

Marina Markellou considered how the Greek protection of the reproductions of cultural heritage images presents similar principles to the Italian approach. She cited recent examples, including the recent public outrage in relation to an Adidas advertising campaign at the Acropolis site and the refusal by the Minister of Culture of Yorgos Lanthimos’ request to shoot footage of his new film Bugonia at the Acropolis in Athens. The reasons for these approaches include the incompatibility with the value and symbolism of the cultural heritage concerned, as provided by Article 46 of the Greek Cultural Heritage Code, which regulates the accessibility and use of “monuments” and cultural objects and provides for the relevant permissions to be complemented with a fee paid to Fund of Archaeological Proceeds (TAP) upon decision of the Minister of Culture.

Edouard Treppoz offered a French law perspective on the territorial reach of cultural heritage regimes. He highlighted that the protection of cultural goods should fall within the scope of the French Civil Code, while the protection of the images of these goods should only be in the purview of IP law. He then considered that, with regard to images of cultural goods, case law has stated that interference is only actionable if there is a disturbance in the use or enjoyment of the object itself or when 21 national estates are involved as they are able to benefit from a right on the commercial use of the images of the cultural or public building and collections they safeguard. Simply taking a photo and using an image, without any physical intrusion or reputational harm does not give grounds for legal action under French civil law.

Marketa Trimble closed the panel with a comparative view of cultural heritage protection grounded in US law as compared to Italian law. US courts apply a strong presumption against extraterritoriality. This presumption is based on a two-step test: (1) Does the statute explicitly state that it applies beyond US borders? (2) if not, does its focus clearly concern domestic conduct? Additionally, US courts are generally sceptical of applying foreign public law extraterritorially. Enforced under the ICHC, image rights connected to cultural heritage would therefore struggle to meet the threshold for recognition or enforcement.

Panel 3: How much? Cultural heritage between free uses and licensing – Part A

Anna Pirri Valentini opened the panel, moderated by Lucrezia Palandri, by considering that Italy has the oldest cultural heritage legal tradition. Today, while the regime focuses on both valorisation and preservation, any use of cultural heritage must comply with the preservation needs, even in the cases in which public access and enjoyment might be limited. The following public interest justifications were identified: (1) avoiding distortion of the asset’s cultural significance; (2) ensuring that the use is in compliance and supports public knowledge public enjoyment of cultural heritage; (3) preventing distortion of competition and lost revenues. She then offered a comparative overview of France, where Article L621-42 of the Code du Patrimoine regulates the commercial use of images of buildings within the domaines nationaux and prior authorisation is required, and Germany, where the Kulturgutschutzgesetz (KGSG) does not regulate image use and the German Copyright Act explicitly states that faithful reproductions of public domain works are no longer eligible for new protection.

3rd panel

(Photo by Chiara Gallo)

Silvia Scalzini delved further into the Italian landscape, focusing on the legislation relating to copyright and cultural heritage, with particular attention to the 2024 Ministerial Decree, which still leaves room for interpretative uncertainty, especially in cases of hybrid, partly commercial, partly educational, uses. She then focused on the impact of Article 14 of the Digital Single Market Directive on the Italian legal system. She suggested that a referral to the Court of Justice of the European Union could provide clarity, while still presenting some difficulties and the outcome of such a decision could be uncertain.

Giulia Dore argued that copyright might not be the central issue when it comes to regulating cultural heritage, as most of the artworks in question are already in the public domain and the Italian approach might stand in contrast to the EU’s objectives: promoting openness. She then considered how the Vitruvian Man decision was part of a broader trend concerning the tension between the freedoms linked to the reproduction of images of works in the public domain and institutional control. It demonstrated how Article 10 ICHC enables institutions to cherry pick legal norms to justify restrictions that may be seen as unique on the basis of decorum, a potentially broad concept used by institutions to limit use based on perceived appropriateness and the artistic, historical, cultural and national value of the works themselves.

Felicia Caponigri brought the US perspective to the panel by examining the fair use standard under copyright law. The flexibility of the US fair use doctrine allows for engagement with cultural works, which are objects that “need to be used” to be valued. Indeed, Botticelli’s Birth of Venus, in the US view, is free to use and reinterpret, even in commercial or artistic contexts (i.e. reinterpretation by Andy Warhol, Annie Leibovitz and a trade mark bearing Botticelli’s name for pasta sauces). A significant point of her discussion was the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith case.

Panel 4: How much? Cultural heritage between free uses and licensing – Part B

The final panel served as the conclusion to these intense and interesting couple of days. Niccolò Galli, as the moderator and chair of the panel, provided a brief excursus on the competition law perspective surrounding museums’ licensing practices, especially at the EU level.

4th panel

(Photo by Eleonora Rosati)

Rina Elster Pantalony opened the discussion noting that the US legal system, like Italy and the EU, shows a conflicting balance between protecting cultural assets and enabling access. One of her presentation’s central questions was “what does ‘access’ mean?” in the context of mass digitalisation within cultural institutions. She provided a detailed overview of the fair use doctrine, emphasising the wording and actual language of the statute and highlighting the four statutory factors. She discussed landmark cases involving creative transformation and appropriation art, including Campbell v Acuff-Rose, Cariou v Prince and Goldsmith v Andy Warhol Foundation, as US courts addressed a range of cases involving artists whose works borrowed heavily from existing artistic culture.

Deborah De Angelis presented on cultural heritage protection and on the relationship between open access principles and institutional obligations, advocating for a shift in how public cultural assets are shared and managed digitally. In particular, Creative Commons licences, she explained, are essential tools in this process, offering standardised frameworks for responsible and flexible sharing. De Angelis argued that cultural institutions should be able to adopt Creative Commons licensing to share content more broadly and to clearly communicate how their materials may be reused.

The Vitruvian Kat

(Illustration by Arianna Gallo)

The final contribution was by Ferdinando Traversa, who described the extensive efforts undertaken by Wikimedia Italy to liberalise access to images of cultural heritage. An example is the international photo contest called Wiki Loves Monuments, which encourages public participation and raises awareness about the note-worthy monuments located in the countries adhering to this initiative. Given the limitations and restrictions in Italy, Wikimedia Italy, since launching the Italian version of the contest, has taken proactive steps to collect explicit permissions from municipalities and public authorities to allow for the sharing of images of monuments and cultural sites under open licenses.

Conclusion

The two-day conference highlighted the difficult relationship between cultural heritage and the unique Italian legal framework regulating the reproduction of images of works of national, historical, artistic and cultural interest. This contrast is exacerbated by the rapid advancement of digitalisation and dissemination of information. At the core lies the unresolved friction between public domain and institutional control: who owns cultural heritage images, who benefits from their reproduction, and ultimately, who gets to decide how they are used?