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The article discusses the specifics of the commercial use of artworks belonging to the Italian State due to the application of the Cultural Heritage Code.
In particular, we will examine:
Cultural heritage such as Michelangelo’s David, Botticelli’s Venus, Caravaggio’s Teenage Bacchus, etc. turn out to be extremely attractive to those running a business. Indeed, the image of these assets is often associated with promotional campaigns, new products or services.
Even Pornhub in 2021, because of the combination of Venus and one of its initiatives called Classic Nudes, had forced the Uffizi to intervene with a legal warning.
In order to use a work of art held by the Italian State, by law, a fee must be paid and a specific authorization obtained. A cultural heritage is also relevant in symbolic terms, as the collective memory of the national community. Hence, it cannot be sufficient to pay a fee to use a cultural asset. Recently, the Court of Florence was able to clarify the meaning of such authorization requirements.
The authorization for the exploitation of a cultural asset is made through an assessment of compatibility between the collective interest and that of the applicant for exploitation (which are not always reconcilable).
The Court of Florence, in an order dated April 11, 2022, clarified that “it is not sufficient for the legitimate reproduction of the cultural asset the payment […] of a fee, since an indispensable element of the use of the image is the consent given by the administration, at the outcome of the discretionary assessment regarding the compatibility of the requested use (and its possible conformation) with the cultural destination and the historical-artistic character of the asset.
The very nature of the cultural asset intrinsically therefore demands the protection of its image through the compatibility assessment reserved to the administration, understood as the right to its reproduction as well as the protection of the consideration of the asset by the consociates in addition to its identity understood as the memory of the national community of the territory as a collective identity notion: this content configures a right to the image of the cultural asset in the full sense.
Indeed, the object of the protection of cultural heritage is also identified therein in its collective identity function (memory of the national community): cultural heritage expresses and preserves the intellectual, political, social, religious, and ideological heritage of the community, the protection of which comes to be individualized and concretized in relation to individual cultural goods.”
All in all, when exploiting cultural heritage for commercial or entrepreneurial purposes, it is important to be thoroughly familiar with the regulations pertaining to it. In addition to the payment of a fee in order to exploit a cultural property, it is also necessary to obtain the express permission of the Administration.
Let’s see in detail what parameters are used for the authorization.
Reproduction of cultural property, however, can only take place in compliance with the peremptory conditions set forth in Articles 107-108 of the Italian Cultural Heritage Code. As we have seen, authorization depends on the outcome of a discretionary assessment by the authority regarding the compatibility of the requested exploitation with the historical-artistic character of the property and its cultural destination.
In addition, the authority responsible for granting the cultural property will set the fees for the reproduction of the property, taking into account factors such as:
Using the image of famous works, without concern for the possible consequences and applicable discipline, often results in the risk of having to stop marketing goods, services or advertising campaigns. In addition, unauthorized exploitation of cultural property results in the payment of penalties and possible compensation for damages.
For these reasons, it is necessary to have any initiative that results in the exploitation of such works of art evaluated, preferably prior to launch. As a matter of fact, it is always possible to negotiate with the entity in order to obtain an estimate of the required charges and the corresponding authorization, even with the help of a lawyer.
