The Italian Ministry of Culture has taken legal proceedings in Italy against a number of commercial uses of Public Domain works held in Italian collections. Defendants included GQ Italia (for using Michelangelo’s David on a magazine cover), Jean Paul Gaultier (for using Botticelli’s The Birth of Venus in a clothing collection) and, of particular interest here, Ravensburger (for using Da Vinci’s Vitruvian Man on a jigsaw puzzle). The court of Venice ordered the German toy manufacturer to pay a fee to the Gallerie dell’Accademia di Venezia not only for products sold in Italy but also in other markets, including in Germany. Ravensburger turned to the regional court of Stuttgart to establish the inapplicability of the Italian Code of Cultural Heritage Law outside of Italy. In a ruling issued in March, the court ruled in favour of Ravensburger, arguing that Italy’s approach is incompatible with the principle of territoriality in international law.
How the Italian ‘pseudo-copyright’ harms the Public Domain
As we have argued before, the Italian cultural heritage code establishes a kind of pseudo-copyright that is incompatible with the very idea of the Public Domain. It also goes against the intent of the EU lawmaker in safeguarding the public domain from new layers of exclusive rights. We recall that Art. 14 of the CDSM Directive establishes that, when the term of protection of a work of visual art has expired, any non-creative reproduction thereof cannot be subject to copyright or any other related rights, making these works fair game for commercial uses such as the one by Ravensburger.
The Italian transposition of the directive, however, consciously fenced off Public Domain works held by Italian cultural heritage institutions and affirmed the application of the Code of Cultural Heritage Law (ItCCHL). Under the ItCCHL, commercial uses of cultural heritage held in Italian collections are subject to pre-authorisation and the payment of concession fees. This creates a new exclusive right for works, including those in the Public Domain, held by Italian cultural heritage institutions.
An independent expert opinion commissioned by COMMUNIA to scholars Giulia Dore (University of Trento) and Giulia Priora (NOVA School of Law in Lisbon) raises doubts about the legality of Italy’s transposition as it fails to satisfy the required “obligation of result” imposed by Art. 14. They consider that the Italian transposition and the Italian Courts’ rulings reveal “an attempt to impose new forms of exclusivity on cultural heritage that may go even further than copyright restrictions.” Not only does the Italian legal system disregard the intended aim of Art.14 but it also disregards the aim of the directive to achieve greater harmonisation between member states’ legal systems.
The Italian case against Ravensburger
In 2023, the Gallerie dell’Accademia di Venezia challenged the German company Ravensburger for the use of the Study of the Proportions of the Human Body in the Manner of Vitruvius by Leonardo Da Vinci, commonly referred to as the Vitruvian Man. The Galleria claimed that Ravensburger’s use of the work violated Art. 107–109 of the ItCCHL regarding the exploitation of the work and Art. 6,7 and 10 concerning the personality rights referring to the alleged “debasement” of the work through the unsupervised use of its reproduction for merchandising. The court case is also notable for ordering Ravensburger to pay high damages amounting to € 1.500 for each day of delay of their complying with the judicial order.
Even though Ravensburger expressed doubts about the legality of the claim, the company was initially prepared to settle quickly by paying € 250 as a one off payment as well as a licensing fee of 10% of the net sale price for every puzzle sold in Italy. The Italian Ministry of Culture, however, insisted that the ItCCHL applies worldwide to all products that feature works held in Italian collections
The German verdict
In order to declare the inapplicability of the ItCCHL outside of Italy, Ravensburger took the case to the regional court of Stuttgart for a negative declaratory judgement. On March 14th, the court ruled in favour of Ravensburger (see also Lukas Mezger’s contribution on netzpolitik.org). The Italian Ministry of Culture argued that a German court does not have jurisdiction to decide over this matter as the ItCCHL is an Italian law. The Stuttgart court decided, however, to the contrary – that it does indeed have jurisdiction when deciding over the applicability of the ItCCHL outside of Italy, since the parent company is based in Germany.
After asserting international, local and subject-matter jurisdiction over the case, the court ruled that Italy has no regulatory power outside of its territory to prohibit the commercial use of this work or similar works. Under the principle of territoriality, an Italian law is only valid in the territory of Italy. The consequence of the limited territorial scope of the ItCCHL is that the Italian Ministry of Culture is not entitled to a worldwide injunctive relief against Ravensburger, which would prohibit them from using cultural heritage in Italian collections outside of Italy.
This probably won’t be the final verdict, as, according to reports, the Italian Ministry of Culture has appealed the decision. It should also be noted that the court stated that this ruling has no bearing on whether the ItCCHL is compatible with the CDSM Directive or not and that this question is irrelevant to the case at hand. Nonetheless, the Stuttgart ruling is important for the Public Domain going forward, as there are a number of Member States with similar cultural heritage codes in Europe. At the very least, the ruling indicates that these do not apply outside of the territory of the state in question.
