With a first instance ruling issued on 20 April 2023 (available here), the Court of Florence has ordered Condé Nast (editor of GQ Italy) to pay EUR 50,000 plus interest as compensation for damages arising from the unauthorized use of the image of the David by Michelangelo.

The case, which was brought by the Italian Minister of Cultural Heritage on behalf of the Galleria dell’Accademia, i.e. the museum in Florence which holds the David on display, arose after a series of unfruitful negotiations between Condé Nast and the museum were followed by the unauthorized publication on the front cover of GQ Italy of an image of world-renowned Italian male model Pietro Boselli, juxtaposed to that of the David by Michelangelo. The graphic result, obtained by using a lenticular print in a manner that was specifically opposed by the museum, can be seen below:

The decision, which confirmed a previous PI order, is based on the Italian Cultural Heritage and Landscape Code (Legislative Decree no. 42 of 22 January 2004, hereinafter “Cultural Heritage Code”), which under Article 106 et seq. i.a. provides that territorial bodies and cultural institutions may request concession fees to allow the use and reproduction of cultural property they have on consignment and in any event assess whether such uses are compatible with the cultural purpose of such works of art (earlier this year, the Court of Venice had relied on the same provision to issue an injunction with cross-border effect against Ravensburger – we have commented the order here).

Interestingly, by applying the Cultural Heritage Code, the Court of Florence also recognized personality rights – more specifically, image rights – to the work of art by Michelangelo and to works of art in general, which Italian museums would be entitled to enforce for the cultural property they have on consignment.

Quoting the reasoning of the Court (emphasis added):

“As for the image rights of a physical person, which is provided for by Article 10 of the Civil Code, likewise it is possible to also envision image rights over a work of art. Such rights derive from specific legal provisions, i.e. from Articles 107 and 108 of the Cultural Heritage Code, which constitute a direct application of Article 9 of the Constitution […].

The Supreme Court has already acknowledged the possibility to recognize image rights for entities that lack a physical personality […], as well as for entities that lack legal personality, such as unregistered associations […]. In its case law, the Supreme Court has identified the owner of the right to use the good and the owner of the right to exploit it as the entities entitled to invoke protection of the image rights of the good itself […].

In the case at issue [the defendant] has violated the provisions of the Cultural Heritage Code, which, as said, protect the image rights of the work of art and, specifically, has infringed the prescriptions of Articles 107 and 108 thereof.

[…] From a teleological point of view, relevance must be also attributed to the exemption from the authorisation requirement provided under the peremptory conditions set out by Article 108 paragraph 3-bis. The peremptory nature of such exemption hypotheses confirms, on the contrary, the existence in general in the Italian legal system of image rights for works of art, which are guaranteed through the prohibition to reproduce the work of art without authorisation.

Clearly, upstream of the exemptions is an assessment – which the legislator has carried out in the abstract – of the compatibility of certain methods of using images with the ultimate aim of protection of the cultural heritage […].

The rationale of the provisions under review clearly outlines a protection regime, which also involves a non-material aspect pertaining to the reproduction of the cultural asset. These aspects constitute the right to the image of the cultural asset. From the teleological interpretation of the individual rules emerges what is then confirmed in their systematic interpretation and, that is, that the pursuit of the purposes identified by the legislation for the protection of cultural assets cannot disregard the protection of their image.”

In light of the above reasoning, the Court ordered Condé Nast to pay:

• EUR 20,000 as compensation for material damages, i.e. an amount equal to the standard concession fee provided by the internal regulation of the Galleria dell’Accademia museum for use of particularly important works of art such as the David;
• EUR 30,000 as compensation for non-material damages deriving from the juxtaposition, by means of the lenticular print, of the image of the David with that of the Italian model Pietro Boselli, thus “degrading, obfuscating, mortifying, humiliating the high symbolic and identitary value of the work of art and subordinating it to advertising and editorial promotion purposes”;

It remains to be seen whether the above reasoning by the Court of Florence will be used to further expand the scope of protection warranted to works of art by the Cultural Heritage Code, e.g. to extend it to situations which do not entail a reproduction of the work of art, but may nonetheless be detrimental to the reputation and dignity of the work of art.