Steve and Katie speak with Italian lawyer Giuseppe Calabi and art historian Sharon Hecker about Italy’s cultural patrimony laws granting state institutions control over the use of images of cultural property long in the public domain. They discuss the legal, ethical, and practical issues with such laws and their specific application to uses of the Vitruvian Man by Leonardo da Vinci located at the Gallerie dell’Accademia in Venice and the statue of David by Michelangelo located at the Gallerie dell’Accademia in Florence.
Resources
https://www.cbmlaw.it/en/lawyers-milano/giuseppe-calabi/
https://sharonhecker.com/biography/
https://news.artnet.com/art-world/florence-gallerie-dellaccademia-wins-david-lawsuit-2313262
https://eur-lex.europa.eu/eli/dir/2019/790/oj
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Hi, Katie, how are you?
Katie Wilson-Milne: Hi, Steve, I’m good. How are you? You’re in our brand new podcast studio.
Steve Schindler: Yeah, it’s amazing. This is almost the end of the seventh season, and we now have a completely refurbished podcast studio with great soundproofing and colors and I love being here.
Katie Wilson-Milne: Yeah, great improvement. Alright, well today we’re back to Italy, which is one of the hotbeds of our discussions about cultural property and control of culture and we’ve talked about the Getty Bronze, which we’ll talk about again on the podcast. So that’s great, but we’re talking about old works and a new-ish or what we think of as a novel, Italian law trying to control their use in some ways. So I think that’ll be a new topic for our listeners.
Steve Schindler: It will be and we’ll keep them guessing a little bit, but we are joined today by two fantastic guests. We know them both really well. Sharon Hecker is an art historian and curator, specializing in modern and contemporary Italian art. She received her BA from Yale University and her MA and PhD in art history from UC Berkeley. She is a leading authority on the sculptor, Medardo Rosso, and is on the board of directors of the College Art Association, where she serves as liaison to the professional practice committee. Sharon is a member of the Sculpture Vetting Committee at TEFAF Art Fairs and is chair of the International Catalogue Raisonné Association and has written numerous books in her field. We are also joined from Milan by Giuseppe Calabi. Giuseppe is a senior partner at CBM & Partners. And after graduating in law at the University of Milan, he earned a master’s of laws at Harvard University. He has successfully developed the art law practice in which his firm is widely recognized as a leader both nationwide and internationally. He regularly assists Italian and international art market operators, among which are important private collectors, artists, auction houses, dealers, art galleries, artists’ estates, cultural foundations and associations. He is also a past chair of the Art, Cultural Institutions and Heritages Law Committee of the International Bar Association. So welcome to the podcast, Sharon, and welcome Giuseppe.
Sharon Hecker: Thank you.
Giuseppe Calabi: Thank you.
Katie Wilson-Milne: Alright, well, let’s start off. So we’re talking about Italy’s approach to controlling the use of images otherwise in the public domain, meaning not under copyright. These are ancient works of cultural property. And there have been a couple of cases in the news recently, one about the Vitruvian Man and one about the David and Venice and Florence, respectively, and the law under which Italian museums are seeking to control commercial uses of those images, again– long in the public domain. So as an American, it’s very confusing. I think it’s confusing even to other Europeans. So maybe Giuseppe, we could start with you talking a little bit about that law when it came into effect, what it says and how it’s grounded in the Italian constitution or sense of culture and law more broadly.
Giuseppe Calabi: Thank you, Katie, and thank you for having us here. So yes, the law is the first piece of legislation in which the Italian state has asserted its control over reproduction of properties in its collections is a law dated 1939. So this law was enacted in full fascist regime and the provision here was very limited, because it only simply said that it was prohibited to make molds out of a three dimensional artworks. And the main scope of this provision was to protect such artworks against the risk of being damaged in the making of the molds. So the state said, you cannot make any molds for three dimensional– for sculptures in public collections unless for a particular reason I allow you to do so. There was no fee that would be requested by that law. So the law was simply aimed at protecting the state certain artworks in the possession of the state. Then the following relevant law provision comes out 60 years later in 1999. There is a unified text of cultural heritage provisions. And in this text, it is for the first time provided in a very, you know, articulated way that not only the state has the right to– and the power to authorize the reproduction of whatever artworks are in public collections, but also that a fee, according to certain tariffs that were to be defined by the Ministry of Culture, were to be paid in case the state did authorize the reproduction, not limited to three-dimensional works, but all types of works. So the scope of this law clearly would shift from the protection of, you know, the integrity of a three-dimensional work to the idea that the state wanted to control reproductions for making money out of the reproductions that could be made.
So this law was restated five years later with the current Cultural Heritage Code with no much difference. So again, an authorization is required, and you have to, in case it is denied, then there’s nothing you can do. But if it is granted, then– and you have to seek the authorization before making the reproduction– then you have to pay a fee. And the ministry has over the years issued a schedule of fees or a document regulating the fees that are required. Again, there’s nothing in this law and in the current Cultural Heritage Code that would imply that the state in giving the authorization would exercise a discretionary power that would get into the merits or the scope of the reproduction. Why do you want to make a reproduction? For what purpose? For advertisement? For any kind of purpose? And this is where we stand now. And this law has been interpreted by Italian courts and by the ministry itself as a law that would not only give the possibility to the state to make money out of the production. And in my experience, the state does not make much money out of this provision. I mean, it’s very difficult to exercise reproductions, even limited to those that are made in Italy. And then we will go to address the topic of what happens if the reproduction is made.
Katie Wilson-Milne: Let me ask you just a couple of clarifying points for non-Italians. So this law applies to any cultural object owned by the state or an instrumentality of the state. And of course, in Italy, like in all to most of Europe, that extends to virtually every important museum, because every important museum is owned and run by the state. And so unlike in the US where we have museums that are private institutions, although nonprofits for tax purposes, in Italy, these are all state institutions. And so every masterpiece of Italian culture we can imagine that’s on Italian soil would fall under this law. And if I wanted to, let’s say, use an image of, you know, Michelangelo’s David, which we’ll talk about in a minute, I would have to go to the museum in Florence and say, I’d like to use this on my T-shirt. Please give me permission, and I’ll pay you a small licensing fee. And they could say yes or they could say no. Is that right?
Giuseppe Calabi: That’s right, yes.
Katie Wilson-Milne: And technically the law is limited to commercial purposes, right? And of course, as Steve and I have talked about in many contexts, the line in the art world, right, everything is commercial. So the line between commercial and non-commercial is unclear, I’m sure. But technically the law doesn’t apply to nonprofit educational purposes, right? It applies to commercial reproductions.
Giuseppe Calabi: Yes, correct. That’s correct. So the requirement of the authorization and the requirement of a fee to be paid for making the reproduction. Yes, this does apply only to commercial uses, but there’s no fine line what, you know, is a commercial use, is not a commercial use. For example, if you want to reproduce an artwork and you fix it for having it published in a book for a school, that would be considered not educational but commercial, because the book is being sold to the public. So someone would make money out of it.
Steve Schindler: And Giuseppe, do we know, I mean, this law now has been on the books for 20 years, at least as authorized in 2004. Is there a record anywhere of the sort of the number of applications or the types of applications that are granted or not? So we don’t really know whether there have been five or five hundred or five thousand.
Giuseppe Calabi: No, there’s no such record. And well, first of all, the Italian public administration is far from being transparent, as you would expect. I don’t even know if there is any item in the Ministry of Culture’s balance sheet. Maybe there is, but I would have no clue to answer your question. But principally, there is no record. But again, I don’t think that the state makes this is not only my opinion. This is a generally shared opinion that the state does not really make money or relevant money out of this authorization that is discretionally being given.
Katie Wilson-Milne: Sharon, let me ask. So again, unlike the US., Italy has as part of its constitution this idea that it’s the responsibility of the state to protect and promote Italian culture. It’s like ingrained in the heart of the purpose of the state in a way that is not true everywhere else. And I’m curious if you could talk a little bit more about why that is the importance and centrality of Italy’s old slash ancient cultural objects to its identity today and how this type of state control of that fits into that.
Sharon Hecker: Sure. Well, I mean, on one hand, yes, in many of these cases, the artists were Italian and their works were made in Italy. And so there is some kind of connection to the culture. But there’s been a long history of promoting Italy to the world as a cultural center. And that’s why so many people travel to Italy. And that’s why Italy has has this reputation of the great bastion of Renaissance civilization and things like that, that comes from circulating those images around the world. And Italy itself has been a very active player in that, because it has really worked to create the identity of Italy as that kind of a place. This was also very strategic, especially after World War II, but even during fascism, that Italy should become the center of great cultural production. And a lot of this happened through this circulation of these images. Actually, I was thinking it’s interesting. 1939 that Giuseppe mentioned, because that’s the year that, for example, the Vitruvian Man became famous, because Mussolini created a great exhibition showing the great Leonardo next to the greatest living Italian, which was Benito Mussolini. So this has gone hand in hand, you know, really hand in hand with Italy’s attempts to become a strong international power. And it reflects back on Italian culture, the free use of images. I mean, all the books we do as scholars, all the exhibitions we curate on Italian art, that’s always reflecting back on the country of origin.
Katie Wilson-Milne: But Italy seems to want to exercise. And I think every example you’ve given falls into this, both when it’s exporting its culture or it’s controlling how it’s used without permission there’s a sense that the state can exercise control on Italian culture, which, you know, in the US has never been the case. We’re the polar opposite, right? The state has nothing to say about culture. The arts is a critique of the state or, you know, just it exists in a parallel universe. So it’s unique. And I’m curious if you think this current law fits into that long history or is it departure in some way?
Sharon Hecker: I mean, you could take as a counterexample France, which is so eager to share its culture and has no sense of wanting to control it. So I think Italy is quite unique in that, you know, the reason Impressionism got so big in the world and in the United States was because there was incredible openness to have those works and to have them reproduced and to invite scholars and invite exhibitions. I mean, we’re at the hundred years now of all kinds of beginnings of Impressionism. And here we see shows at the Met and all over that really celebrate France and French Impressionism around the world. So, yes, it’s exactly what you said. I think they really want to have it both ways. They want to control it, but they also want it to circulate.
Katie Wilson-Milne: Giuseppe, Sharon, do you have a sense of why this law came into effect at the end of the last century? I mean, what was the need for it?
Giuseppe Calabi: Again, this law has not been very much discussed over the years. It apparently became a very popular law only after the Michelangelo cases a few years ago. So all of a sudden everybody sort of became aware that, you know, you need to have permission. If you don’t get the permission, you may run into trouble. So I think it has to do with the control that you, Katie, and also Sharon was mentioning before, the control by the state, which is something that is deeply rooted in Italian cultural heritage provisions. And you know that the first provision dates back to 1909. So it is one of the oldest, at least in Europe. So control by the state, but I would even go further here, because if you can– if you read the recent cases that maybe we will address in a while, through the courts, the state really intends to do here is to control the use that a certain image is being made by private individuals. It’s the power of the state to control the image of works that are in public museums. And this, in my view, gives rise to some serious concerns, because, as you said, in the US, this would be unconceivable. The state here, I mean, is reminiscent, I think, of what was the old fascist idea of an ethical state. The state controls and governs what the people should think and should, you know, the values that should be followed. And this is something that goes back to the fascism. And it is somehow upsetting that this is something that happens even today, 80 years after the fall of the fascism. So I don’t want to make a political statement here, but I think that this is a typical control that is probably rooted back to those years. I don’t know if this makes sense to you.
Steve Schindler: You know, it makes sense and we understand what you’re saying. I think it’s hard to sort of take on board, you know, given our sort of sensibilities. What you’re saying really makes the law in many ways analogous to the use of intellectual property, right?
Sharon Hecker: Fascism moved very swiftly in Italy into post-war consumerism. And a lot of this has to do again with marketing, with the fashioning the Italian post-war identity as a country that came up out of the ashes. And a lot of times they say, you know, we need to monetize our culture. And you hear that a lot when you say, you know, I’m a scholar, I can’t afford this, or a museum cannot afford 150 image rights from the Italian museums. They say, well, we need we need to monetize. So that is comes out in the postwar period when Italy is desperate to create an image for itself and a financially stable image for itself. And what does it drawn on? Its own culture, which is, you know, legitimate, I guess, in some ways. It’s an asset for them.
Katie Wilson-Milne: It’s interesting, like, is it legitimate as a legal concept in conflict with other legal regimes like copyright and unity with the European Union and the global effort to standardize copyright terms? And versus is it rational for an Italian museum to want to make some money when its objects are exploited? That’s an interesting question.
Giuseppe Calabi: I would say that the issue as to whether this provision would be is in conflict with copyright, even in its European dimension, is a very actual issue.
Katie Wilson-Milne: Yeah.
Giuseppe Calabi: And I really believe that this issue will be brought to the attention of the European Court of Justice, whether in the pending cases or sometime in the future, because this is not copyright. This is just the right that goes beyond any temporal limit. But the content of this right is very similar to copyright. It’s the right to authorize and to get money for a certain use, except for the uses that are related to study, research, and free expression and the like. So as you understand, these are concepts which are extremely akin to any copyright legislation around the world. But the state could argue that this is not formally defined as a copyright, and therefore we are out of the scope of these laws. But I think that the European court may have a more substantive approach to the issue.
Steve Schindler: Right. And interestingly, when we talk about copyright, we have the concept of fair use, which is the balancing aspect of copyright which allows new works to be made, to sort of build on old works to the extent that, for parody, for example. And at least one of the cases, potentially, that we’re talking about or we’ll talk about involves a bit of parody. And it seems like there’s even less flexibility under the Italian law, because the government can just say no. And then it doesn’t matter whether it’s fair use or not. The only exception is potentially just a non-profit use.
Sharon Hecker: I think that also Italian museums are state museums. They have no outside source of funding. They have no boards or donors. They’re very poor, and they have very little ability to do quality exhibitions and hire curators and things like that. So sometimes, you know, that’s the rationale for them is that they need to find sources for income. Even if it might be a very small amount, it’s something that they are told is to try to use the collection to figure out ways to make money.
Katie Wilson-Milne: Steve, that’s such an important point, because if we take a step back, the very purpose of copyright law is in conflict with this law, right? This law is not a copyright law. It’s a different law, but it serves to impede the purpose of copyright, which is to balance this idea of promoting creation with preserving both free speech and the free access and use of information. Right. And so copyright tries to balance these two values. What gives a copyright owner, the author, which of course the Italian state is not an author, gives an author a right to control use of their creations for a certain period of time. Now, most commonly 70 years after the author dies, right? So the family or the heirs have some period of time where they control it. But then it’s fair game, right? After that period of time, it’s in the public domain. In the public domain, the whole concept and idea of that, which I believe is expanded and discussed in the European Directives on intellectual property, is that it’s very important that at some point, knowledge, information, culture, artistic creation circulates freely. That that is also a value that we protect. And that’s why copyright terms expire. And this law kind of, for a very powerful actor, for the state of Italy, creates an absolute approval process with no timeline, no period of time where it expires. And so that does seem to me incompatible. And I don’t know if there’s any sort of idea from politicians or policy makers that this is in conflict, if that’s been discussed, or how the European Court would come down on this.
Giuseppe Calabi: This is a very important point that you raised. And now in general terms, the European Constitution, the Treaty of Lisbon, the Treaty for the Function of the European Union, is based on certain pillars, one of which is free circulation of merchandises. And there is an exception here for cultural property. And why am I referring to this? Reproduction of images has not referred to physical items. But based on this European Treaty provision, the Italian state opines that cultural heritage laws are an exception to any sort of European provisions. I mean, the protection of cultural heritage comes first. This is a tenet that is frequently heard or read in the official documents issued by the ministry, and also by the courts, I would say. So this law is considered part of the cultural heritage system. And therefore, in particular in the Vitruvian Man cases, the court has endorsed an interpretation where the Italian cultural heritage law has an extra, a universal application. It’s not only related to what happens in the Italian territory, because there is Article 9 of the Italian Constitution that protects the promotion and protection of cultural heritage. But not only that, I mean, this is considered a sort of a public order provision that even supersedes European law, which is normally, for a good reason, considered a superior source of law than domestic law. So there is this extra territorial reach that in these cases, this is a particular application of this principle applied by Italian courts, which even goes beyond this. And then you refer to the Getty Bronze, and that is probably another possible, has nothing to do with the production of images, has to do with something else.
Steve Schindler: It’s another podcast.
Giuseppe Calabi: Yes.
Katie Wilson-Milne: But the reach of the Italian state is the theme.
Steve Schindler: We’ve now mentioned the Vitruvian Man situation several times, so maybe this would be a good opportunity to both talk about the recent case and to take a look at the history of this Vitruvian Man.
Sharon Hecker: Sure. So for those of you who don’t know the details, the Vitruvian Man is this very tiny, 35 by 25 centimeter, pen and ink drawing on paper by Leonardo da Vinci, probably made around the 1490s, but we don’t know. It shows two views of a man. One is enclosed in a circle and the other is in a square, and they’re superimposed, and all around it is text that’s written in Leonardo’s notorious backward writing that you could only read if you held a mirror up to it. It’s a very beautiful drawing. We don’t know exactly why he made it. We don’t even know exactly when. And today it’s in the Galleria dell’Accademia in Venice, but it really wasn’t there for many centuries. It’s rarely exhibited to the public for conservation reasons, because it has to be kept in the dark, and yet we still all seem to know about it intuitively. It wasn’t his own idea. It’s based on the ideas of an ancient architect, Vitruvius, and that’s why it’s called the Vitruvian Man. He wrote a treatise called The Ten Books of Architecture, and it’s about constructing a house using harmonic human proportions that are mathematical, but at the same time can be seen as divine. So it’s a very spiritual drawing as well. And I guess Leonardo didn’t request permission from Vitruvius while infringing on his copyright.
Katie Wilson-Milne: Very happily.
Sharon Hecker: But since it originates in his ideas, the drawing does have importance for Italian culture, and of course, Leonardo, as an Italian artist, even though late in his life, Leonardo died in France, so he wasn’t just an Italian artist, and he wasn’t also the only one to make a Vitruvian Man. Many artists did it. Even Dürer made one. But somehow Leonardo’s is just more artistic and more beautiful and more human and more mathematically perfect and more spiritual all at once. So that’s probably why it’s more powerful. And more Italian, it seems. And more Italian in some ways.
Katie Wilson-Milne: How long has it been in Venice?
Sharon Hecker: So it’s actually only been in Venice since the 1800s because it passed from hand to hand, was sold off at an auction, and then it was bought by somebody else who then finally gave it to the Academia, I think in the 1850s. And for many years, it was completely unknown, for many centuries, engraved in a book. And at that time, just artists knew about it because they were using it as a kind of a mnemonic device to remember how to make the proportions of human beings. But then in the 20th century, when the Mona Lisa was stolen from the Louvre in 1911, famously, that’s when Leonardo kind of came in mass culture. And then Mussolini did this big show in 1939, and that’s when the Vitruvian Man became known to all. It’s funny, it’s very recent, but we still know about it so much through memes and paraphernalia, and it’s on the one euro coin. It’s on every German health insurance card. It was the symbol of NASA’s Skylab 3 mission. It really lives in our imaginations. Gyms, medical practices, superhero comics, even Bart Simpson is drawn as the Vitruvian Man. And also, all you have to do is Google and you find t-shirts and watches and pens and cufflinks and posters and flip flops and face masks and keychains. I mean, it’s just endless, as well as contemporary artists. They’re very inspired by the Vitruvian Man, so it really has its own flow into the world.
Steve Schindler: So to some extent, its fame and its importance is derived by the very fact of its reproduction in so many different ways.
Katie Wilson-Milne: Right, and it’s impossible to imagine that all of those uses, Sharon, that you mentioned, have been sanctioned by the Italian state or the Italian museum. It’s impossible. So it raises the question, which maybe we’ll talk about later. We won’t have an answer to it. Just how much control does this law even have? You can make a law, but is the use of the Vitruvian Man just so expansive that it doesn’t even matter if Italy has a law? It’s not possible to police all these uses.
Sharon Hecker: Yes and no, because publishers don’t even want to get started when you say you don’t have permission. And so that is a problem, because even if it’s not policed, publishers will refuse to publish things that don’t have permissions with them.
Katie Wilson-Milne: Tell us about the recent lawsuit about the Vitruvian Man, which is, as Sharon just pointed out, only one of thousands of uses of this object. But this is one that came to court in Italy and then Germany.
Giuseppe Calabi: The case started because a German company called Ravensburger made a puzzle. This company is based in a German town called Ravensburger, which was an important commercial center in the Middle Ages. There is this important company that specializes in puzzles. Among other things, they are also a publishing company. They made this puzzle. This puzzle was marketed in Europe and around the world, also through e-commerce. Then this puzzle came to the attention of the Italian authorities. And apparently, there had been some discussion, but the Italian ministry sued in Italy before the court of Venice, the German company, and to cut a long story short, they obtained an injunction order prohibiting the German company to distribute the puzzle, because it did reproduce an image of the Vitruvian Man. There was an issue regarding the jurisdiction, and clearly one could say, well, but this is a German company. The puzzle was made in Germany, but the position of the Italian court was that the, and here again goes back to what I had been telling you before, the damage, so the state claimed a damage. The damage consisted, according to the state, to the banalization of the use of an iconic image for a puzzle. And the damage occurred in Venice because the Galleria dell’Accademia is a Venetian museum. So this would set the legal basis for the Italian jurisdiction. Also, they claimed that the puzzle was, you know, it was possible to buy the puzzle in Italy through e-commerce, which was the case because I myself bought one for my kid.
But apart from the technical issues regarding the jurisdiction, whether or not an Italian court would have jurisdiction over something that had entirely happened, at least at the production level in Germany, the other relevant question that was addressed by the state is that we have control, and this control was given to us by the Italian Cultural Heritage Code, which is based on the Italian Constitution. And we exercise our control regardless of where the reproduction is made, because we can issue an order also against a German company. So this was the first part of the litigation. The second part of the litigation is that the company filed a claim in Germany before the Court of Stuttgart against the Italian Ministry. It was a declaratory judgment aimed at obtaining a judgment where the German court would rule that a German company could not be the target of an injunction for something that didn’t happen in Italy, but only in Germany. That was the ruling by the German court. The German court clearly said two things. One, that European copyright provisions could be at stake here. Secondly, that Italian cultural heritage provisions would apply to facts that have occurred in Italy, not abroad. This is an important principle. There is a clash between these two judgments. I guess this is a difficult situation that should be brought before the European court.
Katie Wilson-Milne: Yes, that’s what I was going to ask. How does that then happen? The Italian ministry could appeal this judgment to the European court?
Giuseppe Calabi: The thing is that according to the European system, you don’t have a direct claim, but you request the local court to submit the issue as to whether a certain domestic national provision is consistent with European law. So there is a control. It’s the court that has to submit the issue to the European court. In general, with exceptions, but you don’t have a direct recourse to the European court of justice. So we hope that this matter will be somehow addressed by the European court. And the cases are still pending based on my knowledge. So these were interim cases. So the judgment on the merits is still pending.
Steve Schindler: So can I ask you to just go back one second, Giuseppe, because there are two things that you mentioned that seem slightly in conflict with each other. And one is the notion that the Italian government had jurisdiction, because of the banalization, I think, as you put it, of Italian cultural property. And then the second piece of it is that there are puzzles available on e-commerce in Italy. So there are sort of two things going on here. One is that you’ve taken an important piece of Italian culture and you’ve trivialized it, you know, by making a puzzle out of it. But then the second piece of it is that we also have a claim because you’re making money. There are two types of damages that seem to be a little bit in tension with each other. Am I understanding this correctly?
Giuseppe Calabi: Yeah, in a way, you’re right, because in fact, the state claims damages. And we will see in the Michelangelo case, the Court of Florence did award the state, you know, not very substantial damages, but damages against the reproduction of the Michelangelo without the authorization. So, yes, you are making money and the money, we should be the one making money out of the reproduction.
Steve Schindler: But I guess the way I see it is you can say, we don’t like the way you’re treating this image and therefore the natural consequence of that should be you must stop, right? Because you’re concerned about the image. But the second piece of it is, well, okay, you can go ahead and continue your banalization of Italian cultural property as long as we get a slice of the action. And that’s to me what I find a little bit inconsistent in the approach.
Giuseppe Calabi: I think that the balance, if you read all the judgment, there are not very many judgments. I mean, I must say that there are not more than five judgments, to my knowledge, that have addressed these issues. So two regarding the Vitruvian Man and two or three regarding the Michelangelo sculpture in Florence. So the balance between the two aspects that you were mentioning, referring to, Steve, I think that this would weigh in favor of the prohibition. We don’t like this and therefore we prohibit you from doing it. We would not have granted the authorization. But since you have done it without the authorization, pay us some money. Yeah, pay us some money. And again, I can give you some figures now. The Michelangelo, would you like me to very briefly talk about the Michelangelo?
Katie Wilson-Milne: Yes, I do want to talk about the David. And maybe we can start again with Sharon just describing the work. I mean, I think everyone knows the David, but maybe people don’t know much about it. So if you could give us some brief background.
Sharon Hecker: Well, the David, because they’re already right away after Michelangelo made it, again, infringing on the author of the Bible’s copyrights for using the David. It was actually it was already copied immediately afterwards because it was suffering damage. So there’s the one at the Academia. If you’ve ever been in Florence, there’s another David in Piazza Signoria. There’s another David at the top of Piazza Michelangelo. There was another David that was given to the Queen, Queen Victoria of England and is in the Victoria and Albert Museum. So that’s that question of the copying from the mold. And the original David is really, I mean, that was it’s a hard thing to say. What is the original? I mean, it was so lovingly and religiously copied by people as well, because it was considered contact with the original and contact with Michelangelo’s greatness to copy him. And then, of course, you get into the 20th century merchandising again, which was entirely created by Italy again. I mean, putting iconic images on there in their popular magazines in the 50s, people came to know about the David. But again, it was another work that wasn’t so well known. Artists came to copy it, you know, Rodin, Henry Moore, things like that. But it wasn’t like a mass cultural production until after the war. And that’s interesting, this kind of way that it moved into the mass culture, imaginary, and especially by, you know, comedic things and memes. I mean, if you think about the spoofs on the Mona Lisa, which is in the Louvre, they’re endless. I mean, we have mouse pads, we have tissues, we have, you know, we have everything Mona Lisa. And it doesn’t seem to distract from the original or, you know, be problematic for the original or be problematic for France, right?
Katie Wilson-Milne: Although if it was in Italy, maybe the Italian state would try to monetize it.
Sharon Hecker: The beautiful Getty scarves of Van Gogh, and they’re stunning, but it’s in public domain. So, you know, it’s fine. So the David that’s in Florence, do we know more about when that was created, how it came to be in Florence? Oh, sure. It was made in Florence by Michelangelo. There’s a long history of the commission, obviously. It was a work that was, you know, it’s considered sort of the masterpiece of Renaissance art. It was sculpted in marble, It’s enormous, around 1501. The idea was, of course, that it is both the ideal of Renaissance male beauty, but also that it was actually commissioned by the guild of the these guilds that were working in the in Florence at the time. And they wanted to put it outside to sort of show the greatness of Florence, right? So it was actually it was carved in marble, and that would be the original work. But of course, you know, he was very young. He was only 25 years old. There were all kinds of problems with the marble block, and he knew that this would create a great success for him. So he kept going on this work until he was able to create this beautiful image. And then it continued to receive all kinds of different meanings. As the governments changed, there was a political symbolism of David, you know, the small and small versus the large Goliath and what that meant for Florence. And so this went on through history as a very mythical kind of figure, a political figure, a figure that has a lot of meaning for the city of Florence and for Italy.
Steve Schindler: And one difference maybe between that and Vitruvian Man is I think many, many, many people obviously see and have seen the David. You know, I’ve seen the David multiple times. My kids have seen the David, whereas we haven’t seen the little Vitruvian Man that’s sort of locked away, you know, being protected from the light. So the David just, you know, is so much more, to me at least, the actual David is experienced by a much greater number of people. But maybe Giuseppe, it would be helpful now if you can just tell us what the recent case about the David is.
Giuseppe Calabi: Yes. By the way, the David, I think was, I think last year or two years ago, censored in Florida, I think, by a high school teacher because, it was considered inappropriate to be shown in production.
Katie Wilson-Milne: Another podcast.
Steve Schindler: Doesn’t surprise me in the least.
Giuseppe Calabi: There are weird things that also happen abroad.
Steve Schindler: Well said, I appreciate it.
Giuseppe Calabi: There were two cases here. One was involved involving this company based in Massa Carrara, which is the capital of marble, white marble in Italy. And there are queries from which also the David, you know, the marble that was used by Michelangelo came from. And this company entered into an agreement with a fashion company, a famous Italian fashion company called Brioni. And they made a replica of the Michelangelo that was used by Brioni to as a, you know, sort of a model. They would put clothes, a black tie, a suit on this sculpture, on this replica and exhibit it. So this was not something that the ministry liked very much. And they said again, banalization of the image of the David, and therefore you are not allowed to do it. And the defense was, well, but the marble company said, yes, but we didn’t make the replica just for that case. That was just a commercial use that we are going to stop, but please don’t prohibit us from continuing our work. And this was one case. The other case is a case that concerned a publishing company, an American publishing company that has a– Condé Nast, that has an Italian edition magazine called GQ. And in this, in a number, in an issue of this magazine, Italian magazine, a model was photographed, posing as Michelangelo. And the photograph that was made of this model in this particular pose that was very similar to, you know, it’s a bi-dimensional picture, of course, was a lenticular, it’s called this lenticular model. I think Sharon may correct me if I’m wrong, but it’s a very special technique of making photographs that would emphasize certain features of the sculpture or the three-dimensional object that was being photographed. But so the result of the output was something that was not really identical. It was certainly a variation of the sculpture, the original sculpture, but the ministry here, again, was not happy and issued last year a judgment prohibiting the publication of this reproduction of the David and also awarding damages. And the damages were identified in the following way, 20,000 euros, monetary damages, because the magazine didn’t request and obtain an authorization and didn’t pay a fee for making this photograph, and 30,000 euros as non-monetary damages, because the state claimed that it suffered, that the image of the David had been impaired by this reproduction. So again, the right and power of the state to control the use of the image and to say what is wrong and what is right. But this is what I’m telling you about the political view that the state seems to take here, that it doesn’t sound very, you know, gives rise to some concerns.
Katie Wilson-Milne: And in these two cases, these were both uses in Italy by Italian companies or an Italian branch of a company. So it doesn’t raise the jurisdictional questions of the Vitruvian Man question, but it does show that Italy, at least on its own soil, is going to please us. I have to read this because this was quoted in an article, the statement from the museum about their legal claim. It says that by insidiously and maliciously juxtaposing the image of Michelangelo’s David with that of a model, the publisher, some of this is quoted, some of this, I’m connecting the quotes, was debasing, obfuscating, mortifying, and humiliating the high symbolic and identity value of the work of art and subjugating it for advertising and editorial promotion purposes.
Sharon Hecker: At the same time, though, I think Steven’s right that, you know, that was a religious symbol, that was made for a church, and then it became a major political symbol, so a lot of Florentines do feel very proprietary about their David. It’s a bit different from the Leonardo, I agree with that.
Giuseppe Calabi: Nobody takes the David away from them. So it’s still there. It’s simply, you know, to say that the state, a public authority, has the right to interpret the way a certain work is being reproduced and the scope of reproduction. I think this is no good for me. I mean, it really infringes upon the, you know, free expression and all many other principles that as lawyers, I think we should all be concerned about.
Steve Schindler: Can we just go back for one second, Giuseppe, because I’m not sure I completely understood the process by which this photograph was generated, either Giuseppe or Sharon, because I’ve seen it and it looks to me like it’s the David, a photograph of the David, you know, with the model’s head on it, but I’m gathering that there was something slightly more complicated about the production of it, and I’m just curious what it was and whether it matters.
Giuseppe Calabi: I think I read the judgment says something about it. I mean, what I was referring to as a lenticular, I don’t know whether this is a technical term, photograph, where, you know, the body of the model, it’s the real body of a real model of a human being that looks like the David, Michelangelo’s David, but is not, but it looks like. And so again, here, you know, it’s the photograph of not the David, but of a human being that looks like the David.
Sharon Hecker: So it was morphed into it.
Steve Schindler: Because very few human beings look like the David.
Katie Wilson-Milne: But this human sort of does.
Sharon Hecker: The model was really excited.
Steve Schindler: I think it’s important though, because it’s not a photographic reproduction of the actual object, but it’s, as we said, it’s a human being whose image is maybe manipulated in some fashion in order to more closely resemble the David. And that to me seems a little different.
Giuseppe Calabi: It is. And so I think it is even more, you know, the way a court has interpreted Italian cultural heritage code here is even, you know, I think that they’re stretching the law to a very large extent here.
Katie Wilson-Milne: Yeah. And to Giuseppe’s point, I mean, and Sharon, your point, there’s nothing wrong with the museum or anybody in Italy saying, I find this, you know, this reference to David offensive or distasteful. I mean, of course, that’s modern society. We get to criticize basically whatever we want, or at least we hope so, in a government, you know, that we think is modern. But the idea that those kind of criticisms can be used as a legal basis to stop the use of something is more unusual and, you know, is a kind of control Italy is exercising over its cultural identity that is impossible in other places. So I just thought that this idea of something being an offensive picture or an offensive depiction of an object owned by the Italian state being a basis for saying something is an unlawful activity is interesting. I don’t know, Giuseppe, are there other… I know there have been a few other cases where this law has been applied by Italian courts. Are there any other worth mentioning?
Giuseppe Calabi: Well, the only case I can… I may remember is a case, a very weird case, where actually a court, a Sicilian court, the court of Palermo, did apply the Cultural Heritage Code’s provisions on reproduction, although that is not the state. It’s the foundation of… It’s called Teatro Massimo. Teatro Massimo is the most important theater in southern Italy, probably. It’s an opera theater in Palermo, very well renowned, that is managed and possibly owned by this foundation, which is controlled by…
Katie Wilson-Milne: I’ve been to it. It’s beautiful, yeah.
Giuseppe Calabi: So the image of this theater was reproduced by a local bank for advertisement purposes. Really, I read more than one time the judgment by the court of Palermo, and they also said, well, you didn’t ask the permission according to the relevant section of the Cultural Heritage Code, and therefore you have to pay us damages, and you have to pay the foundation damages. I mean, this is another case where there was simply, there was no idea of banalization or whatever, but it was more a monetary claim here. But I guess that those are the main cases. I mean, I don’t think that there have been…I expect that other cases may arise. It may also depend on the people who are running the ministry. I mean, of course, there are some that changes when the government changes. And so those two cases are probably related. The cases, the Vitruvian Man and the David cases, are related to a, you know, I think that the head of the legal And I don’t know what is going to happen in the future, but these are precedents today. I mean, some of them are still pending. So the outcome will be.
Steve Schindler: Are there any cases that you’re aware of where the court has ruled against the Italian government, or it all seems to be that the courts line up and back the Italian government’s claims?
Giuseppe Calabi: I think so, yes.
Katie Wilson-Milne: Italian courts are on board with this. Yeah, it seems like. Do you have a sense, as Sharon pointed out, there are thousands and thousands of uses of both of these works, the David and the Vitruvian Man, all the time. So the ministry, the Italian government, is obviously picking and choosing what it’s enforcing, and it’s enforcing a law in a very small number of cases. We’re asking you to speculate, but we do that on the podcast. So do you have any idea why these two cases and not many others? What’s the selection process?
Giuseppe Calabi: I think probably these two cases were chosen or were initiated by the government because those are iconic artworks, not for any other reason. I believe that the government would not be bothered by uses that would not involve import. The fact that the two most relevant or the two cases that came to the public attention are those concerning the Vitruvian Man and the David, are already an indication that they’re picking up the cases where important works are at stake.
Katie Wilson-Milne: But they could have brought many other cases about the use of the David.
Giuseppe Calabi: That’s right. And they don’t do it because I don’t think they don’t have the forces, they don’t have the means, they don’t have the possibility to enforce these provisions.
Steve Schindler: Right, but also, if I can speculate from having no knowledge whatsoever here, it strikes me that we have two defendants here that are going to be newsworthy, right? So if you bring a lawsuit against Conde Nast, that is going to get attention by definition, you know, and Ravensburger is a big enough operation that would get some attention too, but if you brought an action against, you know, Steve Schindler because he made some T-shirts with a photo that he took of the David, nobody’s going to care. And so that may be one of the reasons why they chose these cases.
Giuseppe Calabi: By the way, I would like to also point out that two years ago, the state authorized an advertisement campaign that was made by the Tourist Office, the official public tourist office of Italy. And this campaign involved the use of the Botticelli’s Birth of Venus and was normally considered very ugly. I don’t know, maybe Sharon can say something about it.
Sharon Hecker: With the cell phone and, you know, it was Botticelli’s Venus, the Birth of Venus, but done up in a sort of modern day tourist kind of to get the cash.
Giuseppe Calabi: The slogan, the main claim in this advertisement was, how would you translate welcome to meraviglia? I mean, welcome to, how would you say that?
Sharon Hecker: Wonderland.
Giuseppe Calabi: Wonderland, yes, so to promote tourism in Italy. Someone may consider this as a banalization of Botticelli’s work.
Sharon Hecker: Social media went at that one really ferociously in Italy.
Katie Wilson-Milne: I do want to ask you, Sharon, before we end, you alluded earlier to some kind of chilling effect that this law is having on smaller uses, and even though Giuseppe just indicated and we speculated that the Italian state has no enforcement capacity to bring a lawsuit against smaller users of these images and is not in fact doing so, that nevertheless there are some ramifications of a law like this that are beyond what ends up in court. Could you talk a little bit about that from your perspective? Sure.
Sharon Hecker: I think this could backfire because publishers, as I said, do not want to even begin to go down the road of not having permissions with the Italian government, even if there’s no chance of getting caught. They just don’t want to deal with it. And so publications could really suffer from it. Exhibitions where you have a large number of works and would have to pay a lot of money, budgets are limited even for important museums. And I think Italy’s very passionate approach to protecting its cultural property could end up being very counterproductive because out of fear of litigation, companies may start reproducing non-Italian works. And this could have the effect of reducing the influence of Italy and its culture globally and really damage Italy’s standing as a cultural center. And Italy enjoys a great relevance culturally in the world right now. And the soft power of these visual imagery that is so iconic and has been circulating so freely is really what makes it that way. I mean, I think tourism is a huge Italian business and it comes from these kind of iconic images. So ultimately, I think it would be a great benefit for Italy to continue to disseminate these images internationally. And we have petitioned among the international art historians to change this, because it really is out of step with so much that’s going on in the world with fair use. But quality commercialization, a kid playing with a puzzle, learns about Italy, learns about its culture, learns about Vitruvian Man, and it familiarizes all levels of audience with Italian artworks. So it just brings so much of a return to Italy and its cultural production that it’s sad to see that this could backfire and go the other way.
Steve Schindler: Well, maybe that’s a good place to leave it. Thank you both. Thank you, Giuseppe. Thank you, Sharon. This was a fascinating discussion.
Katie Wilson-Milne: Thank you both.
Sharon Hecker: Thank you.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.