Can an Italian gallery sue for the use of public domain art

The Birth of Venus by Botticelli is located in the gallery of Florence, Italy. The Birth of Venus is a painting that is thought to date back to the mid-1480s. It is, therefore, considered public domain and free from any copyright restrictions around the globe. In early July, the Uffizi sent its lawyers to Pornhub, and threatened legal action for the unwelcome usage of The Birth of Venus, along with other Uffizi masterpieces.

The move was in response to a pornography platform that launched an online guide highlighting the nudist or erotic features of famous galleries and museums in the world. These include the National Gallery of London, Museo del Prado, in Madrid, Louvre, in Paris, and Uffizi Gallery. Pornhub has caused controversy by turning classic artworks into pornographic video.

Pornhub removed all references to Uffizi and any artworks. How was it possible to put this much legal pressure on something that is in the public domain.

Protecting cultural heritage

The Uffizi is likely to have invoked the Italian Cultural Heritage and Landscape Code. This law allows owners of cultural heritage objects to prevent their commercial exploitation even if they were created hundreds of years ago.

Italian law protects its cultural heritage. The definition of cultural heritage itself under Italian law is broad: any works which “are of artistic, historical, archaeological and ethno-anthropological interest”. If you wish to use an image of the Colosseum for your pizza delivery commercial you will need to pay a licence (at the central or local levels). You can take action to stop the unwelcome use of an image in controversial or offensive contexts, such as porn sites.

A company may be required to pay a fee if they want to use an image from the Colosseum. This is according to the Italian Cultural Heritage and Landscape Code. Catarina Belova/Shutterstock

A court in Florence issued an order to a ticket agency to stop displaying the image of Michelangelo’s David on their brochures and websites. A court in Palermo also condemned the use of images from the local Teatro Massimo by a bank in its advertising campaign. In Italy, entities that own cultural artifacts have the right to oppose commercial use. It is still unclear whether the same thing will happen in other countries.

It is not just a legal issue. The issue is also political. Dario Franceschini was the Italian Culture Secretary in 2014. He strongly protested the US arms engineering company ArmaLite for distributing ads that depicted David with a rifle. Franceschini said that the Armed David was a threat to the artistic and honor value of Buonarotti’s work.

Copyright and public domain

Museums and galleries may also charge for the use of images of public domain items in their collections or restrict their use. Some of them do this – by declaring, for instance, that their photos of old paintings were subject to copyright.

Is that fair? It is important to note that granting monopolies to custodians over old artifacts means monopolizing the original works. These should belong to the general public, and anyone can use or reuse them.

Originality is another issue. The copyright law protects only original works. The originality requirement may be interpreted liberally in many countries, but there is still a threshold. In the US, in the late 1990s, it was ruled that the exact photographic copies made of images from the public domain could not be protected under copyright because they were not original.

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