We have extensively followed the saga around the Italian cultural heritage code, as evidenced by a series of blog posts on lawsuits involving commercial uses of Public Domain works in Italian collections (Galleria dell’Accademia Firenze v. GQ, Gallerie dell’Accademia di Venezia v. Ravensburger, and Uffizi v. Gaultier). In late September, a bottle of vinegar added another chapter to the story.
The Bologna Court of Appeal confirmed the decision of the lower court that the use of the image of a cultural asset—specifically Velázquez’s Portrait of the Duke of Este which is part of the collection of the Estense Gallery of Modena—on the bottle of balsamic vinegar produced and distributed by the defendant company requires prior authorisation and the payment of a concession fee (Decision no. 1792 of 09/10/2024; see also reporting on the IPKat).
According to the decision, just as Article 10 of the Italian Civil Code recognises the right to an individual’s image, a similar right exists for cultural assets due to their collective value. This right is grounded in Articles 107 and 108 of the Italian cultural heritage code. The decision reinforces the existing jurisprudential stance, severely restricting the Public Domain by limiting the reproduction of visual artworks deemed cultural heritage for commercial purposes.
The reasoning of the court
The protection of the right to the image of a cultural asset in favour of the State is based on a legal interpretation that extends such rights to legal entities or collective bodies – in line with Article 2 of the Italian Constitution. This article protects the inviolable rights of individuals within social formations, thereby enabling compensation claims for damages in cases of violation.
Furthermore, the ruling clarifies that protection extends not only to the physical cultural asset but also to its digital reproduction. This includes the possibility of claiming moral damages in cases of violations affecting the dignity or integrity of the asset. This interpretation arises from Articles 106–108 of the cultural heritage code and an expansive reading of Article 20, which historically referred to physical cultural assets. Article 20 prohibits destroying, damaging, or using cultural heritage in ways incompatible with their historical or artistic character and any exploitation that compromises their preservation.
The defendant had challenged whether the protection granted by the cultural heritage code was lawful in the first place, arguing that it would establish a perpetual quasi-copyright (an argument also made in a COMMUNIA-commissioned independent expert opinion). The court rejected this claim, arguing that the cultural heritage code does not protect intellectual works or their creators but aims to preserve collective memory and foster cultural development. Authorisation and concession fees are thus tools for the protection of cultural heritage rather than for income generation.
Discussion
The ruling of the Bologna Court of Appeal raises several vital questions:
- What takes precedence, copyright and the Public domain status of a work or cultural heritage law?
- How can such restrictions on the use of digital reproductions of works in the Public Domain be justified?
- What is the territorial scope of application for the cultural heritage code provisions?
Under the law and its application by Italian courts, when a visual artwork is declared culturally significant, it is no longer treated as an individual work. Consequently, it is no longer subject to copyright law but to public law, effectively restricting the Public Domain.
Like previous cases, this case highlights the tension between the notion of the Public Domain and public law governing the use of cultural assets. The State’s control over the economic exploitation of cultural heritage images severely limits fundamental right-protected uses of Public Domain works. Arguably, requiring authorisation and the payment of a fee for the use of reproductions of cultural heritage amounts to a hollowing of the Public Domain.
While the principle of territoriality confines the cultural heritage code’s application to Italy, as recently confirmed by the decision of the regional court of Stuttgart in Germany in the Vitruvian Man puzzle case produced by Ravensburger, this limitation impairs the enforceability of injunctions abroad. As a result, the cultural heritage code creates an unjustified limitation on free access to and reuse of the public domain for Italian residents only.
This debate calls for a broader, global reflection. In an interconnected world, how can we balance the need to protect cultural heritage with the imperative to ensure universal access to humanity’s shared memory? Whatever the answer may be, Italy hasn’t found it.
