The reproduction of Teatro Massimo’s image for advertising purposes is subjected to prior authorization and the payment of a fee

The Italian artistic heritage has recently obtained another success against infringements of its image.

A recent and interesting line of decision on reproduction of cultural heritage images has echoed an order by the Court of Florence, issued few weeks before, where the reproduction for commercial purposes of the image of Michelangelo’s David had been declared unlawful, in the absence of administrative authorization and the payment of the relative concession fee.

In the judgement issued by the Court of Palermo published on 21 September 2017, n. 4901, the collegiate Court sentenced a bank to the compensation for damage due to the unlawful use for advertising purposes of the image of Teatro Massimo in Palermo. The ownership of the image belongs exclusively to Foundation, under explicit provision. Thus, the Court partially admitted the request by Teatro Massimo Foundation.

In fact, the Bank had used the image of the famous monument in its own advertising campaign to promote the regional agencies without any authorization of the authority in charge and without any payment of copyright fee.

Therefore, the Foundation requested the sentence of the defendant to pay a compensation for pecuniary damage for the missed collection due as concession fee, as well as non-pecuniary damage resulting from the unlawful exploitation of the image of the historic monument for profit.

The Court of Palermo decided to accept only the claim for compensation for the pecuniary damage requested by the plaintiff.

In particular, on the basis of art. 107 to be considered in conjunction with art. 108 Code of Cultural Heritage, the Judge specified that there is a general obligation to request a concession for the reproduction of the image of cultural assets for commercial purposes upon payment in advance of compensation whose amount is determined by the authority in charge for the asset, taking into account some elements such as modalities, duration and purpose of the reproductions.

The obligation had not been fulfilled in this case by the defendant, whose objection relative to the existence of the so-called “freedom of view” had been rejected.

Concerning the assessment of patrimonial damage, equivalent to the “mutually agreed price”, the Judge from Palermo determined the criteria to be applied in supplemental way as no evidence of the presumed possible concession fee has been supplied, like the present case.

Tariff plans defined in centralized manner by the obsolete Ministerial Decree 8/4/1994 could be applied in these cases, decided the Judge.

Lastly, concerning the compensation of the alleged non-patrimonial damage, while reaffirming the abstract protection of the right to image borne by legal persons and the consequent possibility of compensation of the so-called consequential damage consisting in the diminution of consideration of juridical person or the authority expressing the image thereof, the Judge considered that no damage was included in the present case, since the modalities of performed reproduction proved to be neither denigrating nor prejudicial to historical-artistic value of the theater.

Therefore, it will be possible for the holders of cultural heritage to request both the patrimonial compensation for the missed collection of copyright fee and non-patrimonial damage, if demonstrated, when the image of works or monuments of our cultural heritage are debased, as often happens.