Curators decry parody souvenirs, claim quasi-copyright

D 'n' me at the Accademia in June.
RJ Peltz-Steele CC-BY-NC-SA 4.0

David's genitals are all the rage in Florentine touristic fashion, and some observers see a kind of intellectual property (IP) problem.

Italian law has pioneered the protection of cultural heritage since the 15th century (Mannoni), centuries before Italian unification. Medici rulers limited the export of art in the 19th century (Calabi). In the 20th century, a 1909 law asserted a public interest in protecting items "at least 50 years old and 'of historical, archaeological, paleo-anthropological interest'" (N.Y. Times).

Italy continued to lead in protective legal measures in modern times. A public responsibility to safeguard the national patrimony was enshrined in the post-war constitution in 1948 and became the basis of a "complex public organization" (Settis). According to Giambrone Law, Italy was the first nation to have a police division specially assigned to protect cultural heritage. Italy embraced a 2022 European treaty on cultural protection with aggressive amendments to domestic criminal law (LoC). Woe be to the Kazakh tourist who carved his initials into a Pompeii wall this summer (e.g., Smithsonian).

Italian legal protection has extended beyond the physical. A 2004 code of cultural heritage limited visual reproductions of national patrimony without prior approval by the controlling institution and payment of a fee to the institution. 

That measure caused more than a little hand-wringing in copyright circles, as the law seemed to reclaim art from the public domain. The Italian Ministry of Culture doubled down with regulations in 2023, even as the EU moved to strengthen the single-market IP strategy.

Probably needless to say, images of famous works of Italian art are sold widely, in Italy and elsewhere, on everything from frameable prints to refrigerator magnets. Enforcement of the cultural heritage law is thin on the ground, but the government has scored some significant wins against high-profile violators.

A recent AP News story by Coleen Barry described the latest outbreak of this IP-vs.-free-speech conflict, this time over images of David. Cecilie Hollberg, director of the Galleria dell’Accademia, where David resides, has decried vendors who profit from "debase[ment]" of David's image.

Aprons for sale, 2010.
Willem via Flickr CC BY-SA 2.0

I saw David in late June. It was the second time I visited him; my first visit was in 1996. I don't well remember Florence from that long ago. But this time I surely was surprised by the quantity and variety of David gear available for sale on the streets around the Accademia, especially the sort of gear that Hollberg is talking about. David has become a character in every variety of indecent meme and crude joke about drinking and sex. David's penis is a favorite outtake.

These uses of David's image especially implicate moral rights in copyright law. Moral rights aim to protect the dignity of creators against distasteful uses and associations. However, as such, moral rights typically end with the life of the creator. Michelangelo died in 1564. The theory behind the cultural heritage code is indicated by the very word "patrimony": that there is a kind of inherited public ownership of classical works, thus entitling them to ongoing moral protection.

Copyright in U.S. law and in the common law tradition in the 20th century was slow to recognize moral rights, which have a storied history in continental law, especially in France and in the civil law tradition. But common law countries came around, at least most of the way. Broader recognition of moral rights was motivated principally by treaty obligations seeking to harmonize copyright. A secondary motivation might have been a proliferation of offensiveness in the multimedia age.

Hollberg has been the complainant behind multiple enforcement actions. Barry reported: "At Hollberg's behest, the state's attorney office in Florence has launched a series of court cases invoking Italy's landmark cultural heritage code .... The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said." Not a bad side hustle.

David's shapely backside is not to be underestimated.
RJ Peltz-Steele CC-BY-NC-SA 4.0

EU regulators are looking into the legal conflict between free artistic expression and protection of cultural heritage, Barry wrote. My inclination to classical liberalism puts a thumb on the scale for me in favor of the commercial appropriators. I'm uncomfortable with inroads on the public domain. There already is excessive such impingement on creative freedom: inter alia, abusively lengthy copyright terms, chaos around orphan works, prophylactic notice and take-down, and publisher-defined fair use. The idea of removing permissible uses from the public domain is antithetical to liberal norms.

At the same time, I get the frustration of authorities. The average family visiting the dignified Accademia, eager to induce a much-needed appreciation for history and art in the youngest generation, first must navigate the cultural gutter.