Copyright on Michaelangelo's David

[Joseph Clemson]

There's an interesting new item on the BBC website about the uproar caused by an American arms firm,ArmaLite, running an advertising campaign using an image of Michaelangelo's David statue, shown carrying their new rifle. I'll quote a bit of the BBC website text:

He (Dario Franceschini , Italy's Culture Minister) said in a tweet: "The image of David, armed, offends and infringes the law. We will take action against the American company so that it immediately withdraws its campaign."

Historical Heritage and Fine Arts Board curator Cristina Acidini has issued a legal notice to ArmaLite to withdraw the image, saying it distorts the artwork.
The government says it has copyright on the commercial use of images of David.

 

There may be arguments about tastefulness but I wonder about the legal aspect of this. Is there any internationally recognised legislation that addresses something like this? If there is an Italian law on the use of images of the statue, does it apply internationally? Does this case have any implications for us as photographers of old art works?
It's not clear where the image they have used has come from and whether the basic image itself is the copyright item, though the wording of the article doesn't suggest that is the issue. I'm not anticipating being affected by something like this but I'm curious as to what other Alamy members think.

(edited for formatting)

[Phil Robinson]

The statue is in a gallery in Florence and is presumably owned by someone. There's an interesting bit on Wikipedia (so it MUST be true) about a dispute of ownership between the City of Florence and the Ministry of Culture, but it will be somebody's property. So, for commercial use, which this clearly is, there would need to be permission.

 

Interestingly, there is an identical copy of the original, outdoors in Piazza della Signoria - maybe rules regarding that one would be different?

[Martin P Wilson]

I agree it is more probably about ownership and property release issues.

[Joseph Clemson]

I find it interesting that the Wiki article makes reference to 'David having been endlessly reproduced', referring to the numerous copies of the David figure made in materials as commonplace as plaster and fibreglass, so the offending advert need not necessarily be picturing the original statue. If that were the case, the Italian Culture Ministry could be in the business of claiming ownership of the concept of Michelangelo's David, rather than just opposing the misuse of an image of the original statue itself. That would be going beyond issues of legal property ownership and releases.

 

I'm not particularly looking to argue any point here, just idling away a lazy Sunday, and pondering the legal and moral problems which may present themselves  the next time I take a picture of something for commercial use. 

[Phil Robinson]

I believe the estate of Elvis Presley tried to do the same thing with his image - I don't know how they got on.

[Dave C]

Interesting use of words "The image of David, armed, offends" after all  David is armed with a sling which mythologically he's supposed to have used to quite violent effect, and it's believed to have been commisioned as a warning to rival states as his head was set to gaze sternly towards Rome.

 

I can confirm from my experience last year that the guards at the Accademia will rush you as soon as they see a glimpse of a camera.  Assuming the image that armalite has used is not from an original photo of the statue it's hard to see how they could control something as vague as a concept since you can walk down any street in Rome & buy a cheap copy for one euro.

[Guest]

Verizon Telecom ran into a similar issue http://www.mercurynews.com/ci_6084599?source=rss+&nclick_check=1

 

In that case it was ads in Greece, the law wouldn't apply elsewhere but there may be some protection in EU law/directives.....

 

No reason the Italian authorities couldn't take the company to court in USA. Who knows, there might even be offices/assets of Armalite in Italy - they like their hunting.

[Ed Rooney]

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[PatrioticAlien]

If they licensed it or had a commercial licence from the content holder, it could be covered; pending on the T&C's of the contract. However, if they didn't license it, then it would be a volition.

[Dave C]

@ Ed

 

I do know what you mean.  I wrote this bit of doggerel after some agency used Janis Joplin's song to er sell expensive cars...

 

Oh Lord won't you spare me some moments on Earth?
There's some guys who write adverts, in fact there's a dearth
They twisted my words lord, for what they were worth
So Lord won't you spare me some moments on Earth?

Oh Lord won't you let me behead some Ad men?
They're all driving Porsches, and folks round the bend
They're making my words lord, sell Mercedes Benz
So Lord won't you let me behead some Ad men?

[KerinF]

 

Here are my general thoughts, not necessarily specific to Italian law or this particular statue:

 

1.  It is simply not possible for Michelangelo's David to have any subsisting copyright attached to it.  Even based on today's very generous copyright laws adopted by most countries, copyright generally ceases 70 years after the death of the "author" (i.e. artist in this case). 

 

2.  Even pretending for a moment that the statue still had some copyright attached to it, many countries have specific exemptions that allow someone to make a 2D reproduction (i.e. drawing or photo) of a statue on public display.

 

3.  However, if an artwork (or any other property) is on private property, or in this case a public gallery / venue, then the  owner of that building / property may restrict use of images of artworks, etc inside relying on general access rights (i.e. what you can and can't do on those premises).  This has nothing to do with IP but is more akin to trespass law, i.e. you are infringing someone's property (not IP) rights if you do something they say you can't while on their property.  Same in sports stadiums, though the situation there is complicated by trade mark law.

 

4.  In some countries, and I don't know about Italy specifically, the other basis for objecting to use of an image like this is "passing off" or "misleading conduct", i.e. that the use of an image of the statue of David suggests that there is an affiliation between the Accademia Gallery (or whoever the owner is) and the arms company in question, i.e. because people will think that the gallery must have approved the use of the image for those ads and therefore endorse the ad.

 

Now, if the image was of the replica in the Piazza della Signoria, I suspect that there would be little that the Italian authorities could do!

 

It is a very interesting, if murky, area of law.  In case you haven't guessed, I am an IP lawyer - and some years back I used to work in-house for a publishing house that had a stock collection.  So this is where I say:  none of this should be construed as specific legal advice, its just my little op-ed 

 

What I have seen over the past few years is a decrease in stock agencies' appetite for risk, sometimes way beyond what the strict legal position might be.  No doubt for commercial reasons:  simply more cost-effective to take a conservative approach then engage lawyers to deal with complaints, no matter the merits.  Now that I am just starting out on the other side of the fence (as a contributor), it is a fascinating (if frustrating) process seeing how stock agencies apply these sorts of legal issues, and what I need to do to adapt when both taking and uploading images.

[Ed Rooney]

[KerinF]

 

guessing the Accademia don't mind a bit of Calvin Klein but not so keen on guns maybe?! 

[PatrioticAlien]

guessing the Accademia don't mind a bit of Calvin Klein but not so keen on guns maybe?!

 

Good thing it wasn't speedos, or they might be very unhappy

[spacecadet]

Note well, forumites- we now have  a copyright lawyer on the strength.

Thanks, Kerin. Hoping you're in the UK.

[KerinF]

 

[wiskerke]

Here are my general thoughts, not necessarily specific to Italian law or this particular statue:

Now, if the image was of the replica in the Piazza della Signoria, I suspect that there would be little that the Italian authorities could do!

 

There is no freedom of panorama in Italy. You would need a release.

 

wim

[Peter Jordan]

Kerin,

 

"What I have seen over the past few years is a decrease in stock agencies' appetite for risk, sometimes way beyond what the strict legal position might be.  No doubt for commercial reasons:  simply more cost-effective to take a conservative approach then engage lawyers to deal with complaints, no matter the merits.  Now that I am just starting out on the other side of the fence (as a contributor), it is a fascinating (if frustrating) process seeing how stock agencies apply these sorts of legal issues, and what I need to do to adapt when both taking and uploading images."

 

 

I have an example of this.  I had some images of a sculpture called “Bottle o’ Notes”  which is in Centre Square in Middlesbrough.

 

I had an e-mail Alamy saying that the sculptors, Claes Oldenburg and Coosje van Bruggen claimed it was protected by copyright, and that they (Alamy)  had taken the  images down until the matter is resolved.

 

My response to this was that under the Design and Patents Act 1988, a (2D) photograph of a sculpture in a public place does not infringe the Sculptors Copyright and that the Act says that the author of the sculpture should be acknowledged if the picture is to be published.

 

I contact the local council PR department who confirmed that the sculpture was indeed in a “Public Place”.   They also encouraged me to do what I could to keep the images on sale, they want Middlesbrough to get all possible publicity.

 

I responded to Alamy with the information, and they asked me to deal direct with the sculptors.

 

The response I got from the sculptors was:

 

“Please allow me to clarify the issue, and assure you that the artwork (Bottle of Notes, 1993, by Claes Oldenburg and Coosje van Bruggen, Collection of Central Gardens, Middlesbrough, England) is indeed protected against unauthorized reproduction by the Artists' copyright. Under current copyright law (U.S. Copyright Act, 17 U.S.C. §§ 101), an artwork is copyrighted from the moment it is created, and the right to reproduce the work (copy) belongs to the artist(s) who created it.” 

 

The response from the local authority (Legal Department) was one of outrage.  They mentioned that the sculptors use a picture of Middlesbrough Town Hall in their literature without having got consent!

 

Alamy’s response to me was that they could not pursue this matter as it could only be done by me (the copyright holder)

 

Of course the sculptors response had no validity under UK Law, but I took the matter no further, it being much easier to go and take some other pictures.

 

The sculptors do have form on this, as they were the artists for the Korean War Memorial, which US Postal used, without permission on a postage stamp.  The Sculptors sued and were awarded $650,000.

 

http://www.dpreview.com/news/2013/09/29/fair-use-sculptor-gets-650-000-from-photograph-of-his-work

[spacecadet]

You're quite right of course. In the US you would probably be suing them for 'tortious interference with contract' as I was threatened with by the US company whose software enabled a UK infringement, and Alamy for good measure for restraint of trade.

Alamy isn't going to take a chance on this. All you can do is make sure that the image is published as widely as possible elsewhere and sell it yourself. The artist hasn't a leg to stand on here and obviously doesn't know it, unless he thinks you're in Cleveland, Ohio.

[KerinF]

 

I was reading the post about the Korean war monument the other day.  

 

This one is a prime example of the shortcomings of copyright law which is (for the most part) limited to national boundaries while internet-based commerce crosses those boundaries.  I suppose that, in principle, if an image of that kind was RM, it would be possible to limit sale to those jurisdictions where the law is clear about photography sculpture in public places.  However, as your experience highlights, the most cost-effective solution for agencies will usually be just to remove the photo in question.  

 

I do wonder if the artists have thought through the downside.  Sure, fully appreciate their interests in protecting an income stream from their art, but wonder if it isn't a little counter-productive for them to start irritating the hands that feed them (so to speak).  Not only have you and Alamy had to spend time on this, so has the council that commissioned the sculpture.  

[Peter Jordan]

Kerin,

 

Yes, the international nature of our business certainly makes copyright even more complicated. 

 

It was an interesting experience both for me and the Councils PR and Legal people.  Whilst the sculptors response had no validity in English Law, I am sure, following the Korean War Memorial case, that Alamy's response was the right one.  If someone in the USA used one of these images we might have had a ruinous case to deal with  even if the sculptors lost.   I am not aware if US Postal have paid up or whether they have been able to appeal.

 

I am amused now and again, when I see local double decker buses which have a huge art work of the sculpture on the back!   Come to think of it, I have not seen one of these for a while now, so maybe they have been asked to take it down too.

 

If they have got the $650,000 they probably have not noticed any downside yet, depending of course on how much their legal costs were.

[Inchiquin]

This whole business seems to me to stem from a misinterpretation of the term 'reproduction'. A sculpture is a work of art and the sculptor should indeed have copyright to protect against reproduction of his work. But a photograph is not a reproduction of the work, it is an illustration of it, and should not come under the same legal definition.

 

That's my view anyway. What would the IP lawyer say?

 

Alan

[PatrioticAlien]

 

That's my view anyway. What would the IP lawyer say?

 

Pay up or You're going to jail pal.