Will Jean Paul Gaultier compensate Uffizi Museum for exploiting Botticelli’s Birth of Venus?

Vincenzo Iaia

The 2022 spring summer collection by Jean Paul Gaultier included a garment reproducing the famous painting The Birth of Venus as a “tribute” to the Italian maestro Sandro Botticelli.

However, the Uffizi Museum, as caretaker of the work, was not impressed. Indeed, upon learning about the tribute, the Florentine museum sent a warning letter to the French couture house, demanding that it withdraw the garments from the market on the grounds that they infringe the museum’s rights as provided for by the Italian cultural heritage law. To this purpose, Art. 107 of the Italian Cultural Heritage Code¹ affords to the artwork’s custodians (Ministries, Regions, or other local authorities) the exclusive right to control the reproduction and exploitation of such works, without prejudice to copyright law.

Naturally, copyright on the painting expired centuries ago, although moral rights are perpetual. In the case at hand there is no question about infringement of Botticelli’s heirs right of integrity. This dispute is about the – never ending – control by Italian public entities over goods declared to be of significant and historical interest ²

On one side, the strong legal protection set out by the Italian cultural heritage law seems justifiable by the underlying objective of preventing third parties (especially foreigners) from commercially exploiting the rich Italian artistic patrimony. On the other side, it hinders follow-on creativity even after the lengthy copyright period (70 years post-mortem auctoris) has expired.

It is interesting to note that Art. 14 of the Directive on Copyright in the Digital Single Market ³ highlights the need to ensure the free exploitation of visual artworks in the public domain which may be jeopardized by copyright claims over minimal transformations of the work substantially equal to its reproduction. The provision aims at avoiding the range of monopolies arising from the protection of minimal re-workings to enable the community to freely enjoy artwork(s) in the public domain. Further protection may be granted only for original transformations to the extent that they constitute the – far from undisputed notion of the – author’s own intellectual creation ⁴ . Regrettably, the Directive does not address the tricky issue of artwork available in public landscape, despite the fragmented and uncertain treatment of freedom of panorama ⁵ .

In any case, the Italian implementation of Art. 14 preserves intact the power of public authorities to control the exploitation of the visual artwork, even when copyright expires. Indeed, Art. 32-quater of the Italian Copyright Law underlines the application of the Italian Cultural Heritage Code in case of reproduction of cultural goods.

That being said, Jean Paul Gaultier ignored the warnings and now will have to respond to the Uffizi Museum’s lawsuit for the unauthorized exploitation of the Birth of Venus. One possible outcome is that the French fashion company may have to compensate the museum based on the criteria established by Art. 108 of the Italian Cultural Heritage Code, namely i) the nature of the use; b) the means and methods employed; c) the type and time of use; d) the economic benefits obtained. In addition, Jean Paul Gaultier may be forced to pay damages for not having previously requested the museum’s consent. Who knows if the publicity surrounding the case may make it all worthwhile? In the words of Oscar Wilde, “The only thing worse than being talked about is not being talked about”!

[1]Legislative Decree no. 42 of 22 January 2004.
[2] See also E. ROSATI, Uffizi museum sues Jean Paul Gaultier over unauthorized reproduction of Botticelli’s Venus on fashion garments, The IPKat, 11 October 2022, available at the following link: https://ipkitten.blogspot.com/2022/10/uffizi-museum-sues-jean-paul-gaultier.html
[3] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market.
[4] On the controversial interpretation of the originality requirement under the EU case-law see V. IAIA, To Be, or Not to Be…Original Under Copyright Law, That Is (One of) the Main Questions Concerning AI-Produced Works, in GRUR International, 2022, vol. 71, IX, pp. 793-812.
[5] On this topic see C. BATTISTELLA, La libertà di panorama: profili critici e spunti comparatistici, in Trento Law and Technology Research Paper, no. 75, 2022.

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