ITALY: Cultural Heritage Protection as a Right to The Image

Italy protects its cultural heritage granting perpetual exclusive reproduction rights to the public entities owning the goods via the Cultural Heritage Code (CHC). A recent decision issued by the Bologna Court of Appeals on 24 September 2024  (case A.B. DEL D. OF A.G. S.R.L. v. the Ministry of Cultural Heritage) held that the CHC’s exclusive rights are based on the right to the image pertaining to the public entities that own the cultural assets. Such right covers not only the physical/material aspect of the cultural goods but also their intangible aspect. The unauthorized exploitation give rise to a right for compensation of the damages, due for the entire period of use of the image, and quantified based on an annual fee.

In more detail, the Ministry of Cultural Heritage sued the defendant (a company that produces a type of balsamic vinegar) for the unauthorized use on its products of the image of a painting owned by the Art Gallery of Modena (the portrait of the Duke of Este), seeking compensation for pecuniary and non-pecuniary damages and an injunction against use. Already in the first instance, the Court of Bologna had found in favour of the Ministry and ordered the company to pay €22,832.00 for each year of use of the image, plus interest and revaluation, and compensated for litigation costs. This judgment was challenged on appeal, with a number of arguments, all of which were rejected (except for the statute of limitations of the right to compensation for the years prior to August 19, 2010, i.e., up to 5 years prior to the court summons).

The Court of Appeals dwelt at length on the issue of rights to the image of a cultural good, ruling that such rights are not comparable to copyright or trademark rights, and therefore can be perpetual. According to the Court, cultural goods, including rights to their images, are subject to public protection based on constitutional principles, particularly Article 9 of the Italian Constitution, which promotes the protection of the national artistic and historical heritage. The protection of the right to the image of a cultural good implies that any commercial use must be authorized by the competent authority, in this case the Ministry of Cultural Heritage, with the obligation to pay a fee or consideration. This right is intended to ensure the public preservation and enjoyment of cultural property, without profit, and to prevent cultural heritage from being exploited for exclusively economic purposes without the control and consent of the State. It follows that under the legislation on cultural heritage, contained in the Cultural Heritage Code (Legislative Decree 42/2004), those who intend to use the image of a cultural good are obliged to obtain a concession from the relevant public administration for the commercial use of the image, and that this concession must respect the public and cultural purpose of the asset.

The quantification of damages for the unauthorized use of the image of the cultural asset is based on an annual amount defined by the administration. In this case, the first judge had set a compensation of 22,832 euros per year, an amount upheld by the Court of Appeals. The court assessed this amount taking into account the type of commercial use of the image and the company’s volume of business. In the course of the trial, an expert opinion was filed, which confirmed the appropriateness of the amount based on the company’s financial statements and the extent of commercial use of the image (labels, advertising, promotional materials). On the other hand, the court ruled out compensation for non-pecuniary damage, as specific evidence of moral injury to the image of the cultural asset for use on products had not been presented by the ministry.