With ruling of April 21st 2023, no. 1207/2023, the Court of Florence stated that, like natural persons, even cultural heritage benefits from the right to the image, ordering a publisher to pay the damages caused by an unauthorized publication of the image of the work of art.
The case
The Ministry of Cultural Heritage and Activities and Tourism (in Italian: Ministero per i Beni e le Attività Culturali e per il Turismo) acted against an Italian publisher after learning that the image of Michelangelo’s David was published on the cover of a magazine without the authorization of the Galleria dell’Accademia of Florence, which has custody of the work of art. In particular, the publisher reworked the image of the David using a particular graphic technique to make it appear as an iridescent model in the flesh.
In addition to the interlocutory action for the purpose of injunction, the Ministry instituted also a merits judgment to obtain compensation for pecuniary and non-pecuniary damages provoked by the unauthorized use of the David’s image.
The right to image and cultural heritage: the arguments of the Judges of Florence
The Court of Florence stated that the case concerns the right to image with regards to cultural heritage, equal to the right to image of the personal acknowledged in art. 10 c.c. Such right finds its normative basis in art. 107 and 108 of the Legislative Decree no. 42/2004 (Italian Code of the Cultural Heritage), which defer the power to legitimize the reproduction of the work to the administrations keeping the work.
Moreover, the Court recalled that the jurisprudence of legitimacy had already stated the configurability of the right to image for subjects without natural or juridical personality. The Supreme Court has also stated the possibility to protect an image also with regards to goods having economic importance only by explaining that “not only natural people by also juridical ones, and subjects other than natural people, may invoke the civil protection of the name and image pursuant to art. 6,7 and 10 c.c. In case of undue utilization of the denomination and the image of a good, the above-mentioned protection pertains both to the user of the good in force of a leasing contract and to the owner of the right of economic exploitation of the same”.
Therefore, if the protection of the right to image has been already acknowledged in relation to goods without particular importance for society, the Judges stated that it would be completely unreasonable to exclude cultural heritage from the protection of such right, especially when – as the case at issue – the image of the work of absolute artistic merit, raised as “symbol of our entire cultural patrimony and definitely of the italic genius”, results to be damaged.
The Court moreover recalled that the ratio of the laws composing the Cultural Heritage Code can be identified in the functional destination of such goods: the culturally qualified and free fruition by the entire collectivity, to encourage culture development and the promotion of the knowledge of the Nation’s cultural heritage.
It is therefore a protection regime that cannot leave out of consideration the protection of the image of cultural heritage, precisely because this protection is the highest purpose of the protection and valorization of the cultural heritage.
The decision of the Court
On the basis of such considerations, the Court ascertained that the publisher at issue infringed the norms of the Cultural Heritage Code.
As a consequence of the infringement and because of the failure to pay the fee to use David’s image for advertisement purposes, a pecuniary damage took place. Moreover, the ways David’s image was re-elaborated caused a non-pecuniary damage because the technique used “insidiously and maliciously associates the image of Michelangelo’s David to a model, devaluing, clouding, mortifying and humiliating the high symbolic and identity value of the work of art and using it for advertisement and publishing promotion purposes”.
The Court therefore ordered the defendant publisher to pay to the Ministry the amount of 20.000,00 € as compensation for the pecuniary damage and the amount of 30.000,00€ as compensation for the non-pecuniary damage, besides interests.
Ilaria Feriti