Florence court recognizes “image right” of works of art

In the judgment under review, the Court of Florence ordered a well-known publishing house to pay damages for the unauthorized use of a famous work of art, recognizing the “image right” of cultural property.

The case

On April 20, 2023, the Court of Florence issued a historic ruling, condemning Condé Nast publishing house for the unauthorized use of the image of the Michelangelo’s David. The court specifically acknowledged the existence of a genuine right to the image of the work of art and ordered Condé Nast to pay a sum of 50,000 euros in damages.

The suit against Condé Nast was brought by the Ministry of Culture (on behalf of the Galleria dell’Accademia, the museum in Florence that houses the David), which complained about the unauthorized reproduction of the work in “GQ Italia” magazine. The image of the David had been reproduced on the cover, with a printing technique consisting of superimposing the image of a famous Italian model on top of it.

The cover of GQ Italia, Condé Nast Italia magazine for men.

This is not the first time that the image of the David has been misused for commercial purposes, nor is it the first time that the Ministry of Culture complained to the courts about its misuse. Over the years, Michelangelo’s masterpiece has actually been reproduced, for example, by a travel agency on advertising flyers, it has been used as a testimonial to promote a well-known jeans brand and it has been depicted in the act of slinging a machine gun by an American company that manufactures weapons.

The relevant legislation: the Cultural Heritage Code

Italian Cultural Heritage and Landscape Code, pursuant to Legislative Decree No. 42 of January 22, 2004, according to which the reproduction of cultural property for commercial purposes is subject to the authorization of the Administration that has the property in its custody.

The Responsible Entity has the discretionary power to authorize/allow the reproduction of the image of the property and to quantify the respective concession fees, taking into account:

• the nature of the activities to which the concession refers;
• the means and manner of performing the reproductions;
• the type and time of use of the assets;
• the use and destination of the reproduced material;
• the economic profit derived by the applicant.

Exploiting a work of art for commercial purposes without authorization and without paying the corresponding concession fees to the competent authority exposes one to substantial penalties and, in the worst case scenario, to claims for damages, as happened in the Condé Nast case.

Before proceeding with any commercial exploitation activity, it is always a good idea to seek legal advice in order to obtain a quote and the necessary authorization from the Entity that has custody of the work.

The "image right" of works of art

The Court of Florence took the opportunity to go further, deriving from an interpretative reading of Articles 107 and 108 of the Cultural Heritage Code the existence of a genuine right to the image of works of art, similar to the right to the image of individuals, provided for in Article 10 of the Italian Civil Code.

The Florentine lower court judges invoked the Constitution, stating that “the image of cultural property is an expression of the nation’s cultural identity and its historical memory to be protected under Article 9 of the Italian Constitution”, and that “it is necessary to protect the right to the collective identity of citizens who recognize themselves as belonging to the same nation also by virtue of the artistic and cultural heritage that is part of the memory of the national community”.

The Florentine court concluded by ruling that, due to the unauthorized reproduction of the David, the image of a work of absolute artistic value, which has become a symbol not only of the Renaissance temperaments, but also of our entire cultural heritage and ultimately of the Italic genius, has been “seriously damaged”.

The compensation for property and non-property damage

Condé Nast was ordered by the Tuscan judges to pay a sum of 20,000 euros as compensation for pecuniary damage resulting from the non-payment of the fee, which was calculated according to the standard concession rates stipulated in the Academy Gallery’s internal regulations for the use of works of art of particular artistic value such as the David.

More than that, Condé Nast was also condemned to pay the additional amount of 30,000 euros for non-pecuniary damages resulting from the violation of the David’s image right, since its conduct “insidiously and maliciously juxtaposed the image of the David with that of a model, thus debasing, obfuscating, mortifying, and humiliating the high symbolic and identity value of the work of art and enslaving it for advertising and editorial promotion purposes”.

The ruling is not final, but it undoubtedly creates a historical precedent, which incredibly broadens and strengthens the scope of protection of Italy’s cultural and artistic heritage.