Are commercial uses of public domain artworks legal? The specificities of the Italian case

“The Circus”, a silent romantic comedy by Charlie Chaplin, “All Quiet on the Western Front” by Erich Maria Remarque, “The Mystery of the Blue Train” by Agatha Christie, “The Cameraman” by Buster Keaton, “Lady Chatterley’s Lover” by D.H. Lawrence, “Orlando” by Virginia Woolf, and the artworks of Raoul Dufy are just a few examples of authors whose works entered the public domain in 2023.

When does a work of art become part of the public domain?

Public domain literally means that it belongs to everyone.

Although Italian law does not provide a specific definition of “public domain“, it is generally understood as the status of those assets, information, or content that are or become available to everyone, in terms of access and reuse, without the need for compensation or prior authorization, starting from a certain date (or not).

Therefore, entering the public domain refers to the status of creative works when their intellectual property rights, such as copyright, have “expired” or the owner has waived them.

In any case, the duration of copyright protection varies significantly around the world: in the European Union, it generally lasts for the author’s lifetime and up to 70 years after their death; in the United States, copyright protection depends on various factors, including the date of the first publication.

Public domain works can be used freely for various purposes, including reproduction, distribution, adaptation, and commercial exploitation. Thus, the “raw materials” of artistic works, such as images, texts, or musical compositions, can be used without fear of copyright infringement. These works can now be legally shared, performed, reused, adapted, or sampled (with some limitations related to moral rights on works concerning continental European law. For further information: “Public domain works: a short guide for commercial exploitation” by A. Canella).

What works fall into the public domain?

Three main categories of public domain works can be identified:

1. The so-called “structural” public domain includes works, inventions, and informational assets essential to the community, which various states decide to make immediately available to the public domain at the time of their first publication by law (public domain by the law). Examples of such works include legislative acts, legal and administrative decisions, public source documents, regulations, rulings, ordinances, and official texts of public administration acts.
2. The public domain due to “expiration of terms” refers to works whose rights have expired by law. This is the classic case of public domain works, but it can present various problematic and often difficult-to-resolve aspects, such as works created with the creative contribution of multiple authors or works where the author’s date of birth or death is unknown.
3. Finally, non-structural sources of public domain, or voluntary public domain, include all those works whose authors have deliberately decided, through explicit declaration, to share and distribute with “open licenses” or in the public domain, waiving any proprietary interest. However, it is important to note that true public domain would also exclude moral rights, which in Italy are inalienable in certain cases.

Are there restrictions in Italy on the reproduction of cultural assets belonging to the State's heritage that have fallen into the public domain?

In principle, a work that has fallen into the public domain can be freely used without the need for prior authorization and without having to pay fees related to copyright.

However, if the work is considered an Italian “cultural asset“, meaning it was created more than 50 years ago in the case of artworks, more than 70 years ago for architectural assets, was created by a deceased author, is of cultural interest, and is kept in museums or other cultural institutions owned by the State, Regions, or other public territorial entities, even if it has entered the public domain, its reproduction is not always free (for further information: “Is it legal to use images of famous Italian artworks for commercial purposes?“).

The right to reproduce a cultural asset is assigned to the entity responsible for its protection, as established by the Cultural Heritage Code (Legislative Decree of 22 January 2004, no. 42). The entities managing cultural assets may, but are not required to, allow their reproduction and instrumental use for a fee, according to their regulations. However, no fee is due for reproductions requested by private individuals for personal use or for study purposes.

For completeness, we also mention the Art Bonus Decree (D.L. no. 83/2014), which introduced new measures regarding the protection of cultural heritage, cultural development, and the revitalization of tourism. This decree partially liberalized the authorization regime for the reproduction and dissemination of images of cultural assets (even those not in the public domain) for non-profit purposes, such as study, research, free expression of thought, creative expression, and promoting knowledge of cultural heritage.

The Vitruvian Man: The Ravensburger Case

The issue of commercial use of public domain artworks was at the heart of a recent legal dispute between the Gallerie dell’Accademia of Venice and the German companies Ravensburger AG, Ravensburger Verlag GMBH, as well as their Italian branch, Ravensburger S.r.l.

The case concerned the use of the image of Leonardo da Vinci’s Vitruvian Man, a public domain work held at the Gallerie dell’Accademia of Venice, to produce and sell puzzles without authorization or payment of a fee.

In 2022, the Venice Court of First Instance issued an injunction prohibiting the defendants from using the image of the artwork for commercial purposes, imposing a fine of 1,500 euros per day for delays in complying with the precautionary order. This decision raised significant concerns about the application of the public domain concept and the compatibility of Italian laws with European copyright regulations.

Article 14 of Directive (EU) 2019/790 stipulates that “Member States shall ensure that, upon the expiry of the term of protection of a visual work, material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the resulting material from that act of reproduction is original in the sense that it is the author’s own intellectual creation“.

In other words, public domain works, once copyright protection has expired, can be used freely by anyone without the need for authorization or payment. However, the Italian Cultural Heritage Code stipulates that faithful digital reproductions of cultural heritage works, including those in the public domain, can only be used for commercial purposes with authorization and payment of a fee. This gives Italian cultural institutions control over the commercial use of images of the works they hold.

Recently, however, the Stuttgart Court added further complexity to the matter by overturning the Italian court’s decision concerning the exploitation of the artwork abroad, in accordance with the principle of territoriality (for more details: “The Vitruvian Man and the ‘feud’ between Ravensburger and the Ministry of Culture over reproduction rights” by A. Canella).

This ruling highlights the difficulties of harmonizing national laws with European directives and the need for a more uniform approach.