Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Livia Solaro & **H. Konstantin Jänicke
Introduction
In November 2022, an Italian court ordered Ravensburger, a German manufacturer of toys and games, to stop selling puzzles depicting Leonardo da Vinci’s “Vitruvian Man.” The original artwork is currently held by the Gallerie dell’Accademia di Venezia, which, in 2019, sued the German company for failing to comply with Italian cultural heritage law. This law requires prior authorization and the payment of a fee to reproduce artworks from Italian public collections. Ravensburger refused to pay fees on products sold outside the Italian territory. After the Italian court ruled in favor of the museum, Ravensburger decided to bring the fight to its home country, initiating proceedings before a German court. In March 2024, the Landgericht Stuttgart sanctioned the German company’s right to freely use the image outside of the Italian territory. The following parallel analysis of these two rulings highlights important limits to the protection of cultural heritage, its complex relationship with intellectual property law, and the pressing need for harmonization in this field.
The protection of cultural heritage under Italian law
At the foundation of the Ravensburger case lie Articles 107-109 of the Codice dei Beni Culturali e del Paesaggio (CBCP – the Italian cultural heritage law). Art. 107 subjects the reproduction of cultural goods in public collections to the previous authorization of the museums or institutions in their possession. To appreciate the scope of application of this provision, it is important to note that most museums in Italy are State-owned. Art. 108 allows the same entities to decide on a fee according to the following set of criteria: a) the nature of the activities where the image will be used, b) the means with which the reproduction will be made, c) the type and length of the use of the goods and spaces, and d) the use and destination of the reproduction, as well as the profits that the external party will enjoy. No fee is required for creative and non-commercial uses, research and study activities, and the promotion of cultural heritage.
Crucially, this regime also applies to the reproduction of artworks that have already entered the public domain and are, therefore, no longer covered by copyright. Attempts to monopolize the economic exploitation of artworks in the public domain are not uncommon (see, for example, the use of trademark law to “prolong” copyright). From this perspective, Arts. 107-109 CBCP seem to have successfully created a pseudo-copyright, held indefinitely by the Italian State, on an important portion of the world’s cultural heritage. The Ravensburger case effectively tested how far this protective right is enforceable.
The Ravensburger proceedings
The Gallerie dell’Accademia di Venezia’s legal action follows several analogous cases, targeting non-authorized commercial uses of famous artworks from Italian collections. In recent years, the Uffizi Galleries’ suit against Jean Paul Gaultier and the Gallerie dell’Accademia’s legal battle against GQ Magazine have drawn particular attention. Through precautionary proceedings, museums can secure a court order to immediately halt the unauthorized use of a specific image, with the possibility of resorting to monetary penalties for non-compliance or delays.
Following the Italian ruling, Ravensburger requested a negative declaratory judgment (negative Feststellungsklage) against the Italian Ministry of Culture (MiC) from the Landgericht Stuttgart, a German regional court. In German civil proceedings, a declaratory judgment allows plaintiffs to request a court to declare the existence (positive Feststellungsklage) or non-existence (negative Feststellungsklage) of a legal relationship. Accordingly, Ravensburger sought a declaration that the Italian court’s payment order was not enforceable outside of Italy’s territory.
Issues of jurisdiction
In deciding the Ravensburger case, the Venice court assessed its jurisdiction under European Union (EU) private international law. Under the Brussels I Regulation, defendants in tort cases domiciled in an EU member state can be sued in the forum delicti (Art. 7(2)). According to the case law of the Court of Justice of the EU, this may equally refer to the place of the harmful act or the place where the damage occurs. In the court’s view, the damage had occurred in Italy, the place where both the museum and the artwork were located.
The Landgericht Stuttgart also established its jurisdiction over the case. Firstly, the German court observed that the Italian court’s order targeted not only Ravensburger’s Italian subsidiary but also the main company with its headquarters in Germany. Secondly, the German court clarified that, even though the Venice court had already issued a legally binding decision, this did not bar legal proceedings in Germany, as the two cases were not identical. The first case centered on the MiC’s claim for compensation against Ravensburger, while the second focused on the enforceability of this claim outside of Italy.
The principle of territoriality
The most controversial aspect of the Italian ruling was the court’s conclusion that the CBCP, which applied to the case under Art. 4(1) of the Rome II Regulation, also applied to Ravensburger’s conduct outside of Italy. This peculiar decision was justified by referencing the CBCP’s “universal scope and vocation” and the lack of any explicit territorial limitation within that law. However, when deciding on Ravensburger’s request for a negative declaratory judgment, the German court found that the request was justified (begründet), as the question of the enforceability of Italy’s universal claim warranted judicial clarification. Furthermore, the court sided with Ravensburger, finding that the duty of compensation could not be enforced outside the Italian territory. The German court based its decision on the international law principle of territoriality. Accordingly, while the Italian legislation allows for a universal claim, the concept of State sovereignty dictates that a State’s law is only applicable in the territory of that State. Against this background, the court found no other legal basis for the universal enforceability of Italy’s compensation claim, nor did the MiC provide one.
The EU Directive on Copyright in the Digital Single Market
It should be noted that Ravensburger also tried to challenge the extraterritorial application of Italian law in light of EU copyright law. Before the Italian court, they argued that the control exercised by the museum violated the rules on the public domain codified by the EU Directive on Copyright in the Digital Single Market. Before the German court, Ravensburger claimed that the Italian legislation conflicted with the EU Directive 2006/116/EC, which harmonized the duration of copyright protection within the EU to 70 years after the author’s death. Before the German court, the MiC claimed that the Ravensburger’s obligation did not arise from copyright protection, but from the protection of cultural heritage. Interestingly, Italian and German courts avoided addressing these questions, missing the opportunity to discuss this important problem of coordination between national cultural heritage laws and EU copyright policies.
A critical review of the Italian law
To understand the clash between the German and Italian courts, it is important to consider the specific ruling and law that the Landgericht Stuttgart was asked not to enforce. For example, while the Court of Venice found the sale of the Vitruvian Man puzzle to debase and water down the image and the name of the artwork, it never explained how exactly it injured such rights. According to the Italian system of preventive control, any unauthorized use of the cultural heritage’s imagery is considered tortious, regardless of its specific characteristics. The rationale underlying this law is protecting the integrity of the national cultural heritage, which, as put by the court, represents “an essential interest of the Italian State.” Nevertheless, the regime created by Arts. 107-109 is controversial under at least two profiles.
Firstly, it blends this law’s economic and moral aspects, putting excessive emphasis on the former. It is difficult to imagine that there would have been any issue authorizing Ravensburger’s use of the Vitruvian Man if they had agreed to pay the required fees. This attitude is particularly striking if one considers that the State itself has sometimes made questionable use of the cultural imagery (see, for example, the widely discussed “Open to Meraviglia” campaign with the Venus of Botticelli depicted as a modern-day influencer). The idea that the State might economically profit from the commercial exploitation of cultural heritage is not only anachronistic (as acknowledged by Corte dei Conti, the institution responsible for controlling the State budget), but it also undermines the goals behind the process of digitalization of cultural heritage. Moreover, it does not align with this law’s history. As Italian lawyer Giuseppe Calabi pointed out, the limitation of the right of reproduction was initially meant to ensure the physical protection of the artworks. Later amendments extended its scope to cover images and names, introducing a fee. Nevertheless, this system of control was never envisioned as a proprietary prerogative of the State, but rather as a duty falling upon the objects’ custodians to preserve their integrity.
Secondly, the regime envisioned by Arts. 107-109 is unsuitable for the contemporary realities of international and online commerce. A quick search on Amazon.it, for instance, reveals that numerous brands are actively selling puzzles featuring the Vitruvian Man, leaving the impression that cases like the Ravensburger dispute resemble a game of Russian Roulette. The consequences of this climate of legal uncertainty on the soft power exercised by Italy’s “iconic visual imagery,” noted by Professor Geraldine Johnson, appear to be of little concern to the Italian legislator (perhaps confident in the country’s enduring reputation as a treasure trove of cultural goods). However, by deterring foreign businesses unfamiliar with Italian law from using images of Italy’s cultural heritage, this situation could inadvertently leave the market to unscrupulous actors and their low-quality products, ultimately undermining the very objectives of this law.
Conclusions
In contexts such as the Italian one, some form of control over the use of imagery from the national cultural heritage seems inevitable: its unique historical and artistic importance has made it such a defining trait for this country that the cultural goods themselves enjoy personal rights. A system of ex post, rather than preventive controls, based on the criteria listed in Art. 108, could allow authorities to actually examine the merits of potentially harmful uses (distinguishing, for example, between the commercialization of a puzzle and the promotion of an OnlyFans account). In combination with eliminating the fee requirement, this amendment would remove a significant burden from the users’ shoulders, bring the Italian discipline in line with EU law, and increase the transnational effectiveness of its court orders.
Ravensburger’s choice to challenge the Italian decision unveiled just how crucial the willing cooperation of the succumbing party remains in transnational cultural heritage cases. While the protection of cultural heritage is generally recognized as a fundamental prerogative of sovereign States (see, for example, Art. 36 of the Treaty of the Functioning of the European Union), without proper harmonization, its effectiveness in a globalized environment is inevitably thwarted. Courts will be forced to revert to the principle of territoriality, as did the Landgericht Stuttgart; the resulting fragmentation is bound to jeopardize the proper protection of cultural heritage. The fact that the Ravensburger case took place in the heart of Europe – a region of intense legal harmonization – highlights the need for continuous efforts to develop a system of legal convergence and mutual recognition. For the time being, the legal landscape remains… a puzzle.
* Livia Solaro, PhD Candidate at Maastricht University in the Netherlands
** H. Konstantin Jänicke, PhD Candidate at Maastricht University in the Netherlands
This publication is part of the project PRICELESS (with project number KICH1.VE03.21.003) of the research programme KIC which is (partly) financed by the Dutch Research Council (NWO).
