Vincenzo Iaia
Italian cultural heritage legislation is notorious for being one of the strictest regulations throughout Europe, especially as regards the commercial exploitation of cultural goods. The reason is clearly understandable if we consider the gigantic cultural repertoire located in Italy. In this perspective, Art. 107 of the Italian Cultural Heritage Code1 empowers the artwork’s custodians (Ministry, Regions, or other public administrations) to exclusively control the reproduction and exploitation of such works, overcoming the temporary barriers set by the copyright law (70 years post-mortem auctoris). Moreover, the following Art. 108 provides that the price for the exploitation of the heritage should be based on specific criteria, 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. But one question arises: is this (strong) legislation enforceable outside Italy?
The answer is affirmative ,according to a recent order issued by the Court of Venice. In particular, Gallerie dell’Accademia, the national museum having in custody Leonardo da Vinci’s “Vitruvian Man”, along with the Italian Cultural Ministry, sought an interim injunction against the Ravensburger group to stop the unauthorized production and commercialization of puzzles featuring da Vinci’s masterpiece.
The defendant objected a lack of jurisdiction because of its incorporation in Germany, considering also that the order should be enforced there. Moreover, the Ravensburger group submitted that the Italian Cultural Heritage Code should not be applied outside Italy. The Court of Venice, in amending the first instance decision that acknowledged the jurisdiction of the Court of Milan, stated that the competent authority is the one where the damage was produced. Art. 20 of the Italian Civil Procedure Code identifies this place in the damaged party’s address. Also, the CJEU specified that the person damaged is free to bring a lawsuit both in the country where the unlawful act has been conducted or in the country where the prejudice produced its effects2. As such, the plaintiff, being in Venice, was entitled to file a claim before the territorial court.
As regards the lex fori, the Court of Venice acknowledged the pan-European application of the Italian Cultural Heritage Code as overriding mandatory provisions (“norme di applicazione necessaria”) in compliance with Art. 17 of the Italian Law no. 218/1995 and Art. 16 of the Regulation no. 864/2007 (EU regulation Rome II). These provisions can be considered imperative inasmuch they are aimed at preserving the immense Italian cultural and artistic heritage, as expressly protected by Art. 9 of the Italian Constitution. In the case at issue, the extra-territorial application is grounded on the various connecting factors to the Italian territory since Italy is the place (i) where the prejudice has been produced, (ii) where the work is under custody, (iii) where the public administration is located.
For the reason above, the Court of Venice issued an injunction against the Ravensburger group to cease the production and commercialization of the contested puzzles, with a fine of € 1.500 for each day of delay. It also ordered the publication of the decision in some national newspapers.
In conclusion, producing puzzles or any other product depicting works that are part of the Italian cultural heritage and that are under the custody of Italian public administrations is a risky activity unless you obtain an authorization. Indeed, Italian museums and cultural heritage institutions are becoming particularly proactive in enforcing their rights, as recently witnessed by the Uffizi Museum vs. Jean Paul Gautier affair (see our article at the following link Will Jean Paul Gaultier compensate Uffizi Museum for exploiting Botticelli’s Birth of Venus?).
At the same time, and with entirely different conclusions, Italian works under the custody of museums in foreign countries, like the “Mona Lisa” are not subject to the provisions set forth by the Cultural Heritage Code. In fact, the market is flooded with more or less appealing re-elaborations of this work (see for instance for RedBull ad: https://twitter.com/RedBullBahrain/status/1426457074666459138, or the advertisement for Ben-u-ron whereby Mona Lisa has a headache: https://www.google.com/search?q=ben+u+ron+mona+lisa+advertising&rlz=1C1ONGR_itIT967IT967&sxsrf=AJOqlzXiWrL9ou2nkSTgzfhN5BeEl7as3A:1678738681404&source=lnms&tbm=isch&sa=X&ved=2ahUKEwjIgZr23Nn9AhXZ8bsIHaLICqsQ_AUoAXoECAEQAw&biw=1280&bih=609&dpr=1.5#imgrc=WVr3_NFpwA–wM).
In conclusion, we strongly advise you to reach out to us for a risk assessment regarding the commercial exploitation of cultural goods, regardless if they are inside or outside of Italy.
[1] Legislative Decree no. 42 of 22 January 2004.
[2] Ex multis, CJEU, C-242/2019, decision of July 11th, 2020.
