Florence museum won suit against publisher that used Michelangelo's David image | Hacker News Reader

Florence museum won suit against publisher that used Michelangelo's David image

news.artnet.com

99 pointsjosephcsible84 comments

At the end of the article it points out that a foreign toy company was successfully sued for making a puzzle from Leonardo da Vinci's Vitruvian Man. I'm curious what enforcement authority the Italians have over a German company, if any. The court ruling is effectively saying that the historical IP of the Italian peninsula belongs to whichever Italian museum happens to have the original artifact in their possession, but would a German or EU court uphold this?

Italian peninsula?

Also it’s not conincidental that David is in La Galleria dell’Accademia di Firenze.

It was moved there from its highly symbolic place at the Piazza della Signoria in part due to political implications.

I'm not sure this answered the question. The company is based in Germany. Can they not just ignore the Italian ruling, since they're not in Italy?

Not necessarily, i'm not an expert in EU law, but being in the EU they may be forced to recognize the italian ruling, according to the Brussel I Regulation [1].

[1]: https://en.m.wikipedia.org/wiki/Brussels_I_Regulation_2012

Normally it would be courts of wherever the defendant lives deciding the issue:

“European Union (EU) law determines which courts of which Member States should hear the case, to avoid conflicting decisions. The general rule is that a person should be sued in the State where s/he is domiciled. Furthermore, other jurisdictional rules may be invoked as alternative in specific cases, for example, the person failing in performance of the contract can be sued at the place of performance of the obligation in question (e.g., in the place where the purchased goods should have been delivered). Special rules exist to protect groups such as consumers, workers and insured persons.”

https://e-justice.europa.eu/85/EN/which_country_s_court_is_r...

So seemingly Italian courts shouldn’t have jurisdiction.

Answering the question wasn’t really an objective. More a response to the incredulity and the fact I inferred the commenter believed the museum’s ownership of Michelangelo’s David is not much more than a coincidence.

Someone posted this elsewhere in the thread. It looks like last month a German court said Italy can't actually do that because EU copyright is standardized at life + 70. The Italian government says they'll challenge the ruling, but I'm having a hard time imagining any court in the EU siding with Italy on this one.

https://web.archive.org/web/20240410141158/https://www.nytim...

Didn't someone post recently that they had created a working version of one of Da Vinci's engines? I think it was a clockwork cart.

In fact, I believe that it was a commercial product.

How would that be treated?

Public domain with license fees? What kind of crazy public domain is this?

It's about the precedent. Without protections like this, it's pretty hard to imagine creators being incentivized to produce new work.

Yea Michelangelo hasn’t produced in a while now probably due to motivation, it’s hard out there for an artist who is just trying to break into the scene.

I believe that it's more about protecting the image of the artwork. Imagine using the statue to promote product X. Then imagine that every icon/building/etc. being used to promote something that you/the nation goes against (i.e. the statue in the cover of a porn magazine, or a historical monument to promote the latest crypto-fraud-coin. I understand that the Colosseum, the Acropolis, or the statue of David won't be physically damaged by such an ad, but still..

You're describing a more restrictive version of a trademark. Why don't they call it such?

And why does some modern nation that didn't even exist back when these works were created gets to claim this kind of right on them?

Maybe he not that good after all. Sculpting is not for everyone.

I'm assuming this is sarcasm.

Yeah, because without financial incentive, why would anyone bother to create anything?

Even without protections, creators are going to make new stuff. Without theses protections, maybe a dozen fewer lawsuits will be filed because quite frankly, most people can’t afford to pursue legal action, whether or not they’re in the right.

The sad thing is that Michaelangelo was paid to do a lot of his art. And the David was a commision, he was creating art the same we are coding today: not for the copyright, but for a wage. It was financial incentive enough.

So what you are saying is that the statue has been bought and paid for, so why do we need to pay a licensing fees for something made 15-20 generations ago (~510 years ago) that was paid for already.

Do you get royalties for the code you write for work? Will your great-grand(x15-20)-kids get paid royalties for that JavaScript you made last year?

Yes, that's exactly what my message says... almost word by word.

Artists express themselves through their work primarily because of an uncanny need to do so. Not because others are going to pay of it. Most likely people are going to shit on it, which is exactly what happened to Yorgos Lanthimos (hottest filmmaker Hollywood at the moment) until his works reached a wider audience outside Greece, his home country. Wasn't about money. To this day he works only with studios that will allow him 100% "final cut" control.

Are there "frauds" out there? Sure, is it always clear which one is which, no. But at it's core art is the most well established form expression, other than talking, known to man kind since _forever_.

It's not public domain anymore. It's Italy's domain.

Companies should be more willing to stop doing business with countries that produce crazy rulings like this.

They could use different images.

They could pay the (relatively small fee) before discussing internally and someone with 'authority' saying "f... them, we use it and let them sue us!"

I cannot believe that nobody rang the warning bell about using some photo/material in the magazine, in the whole flow it takes from inception/decision on articles, all the way to the printer.

They'd need to know beforehand though.

It sounds like anything from Italian museums is a no-go due to this, whereas things from German or British museums (;>) would be fair game.

The mention of British museums is due to this recent case:

https://news.ycombinator.com/item?id=38817128

SD variations to the rescue

Despite the allegations here being ridiculous (how is this use humiliating?), i do not find necessarily absurd to ask for a small fee for commercial use. Iconic works of art like this one belong to our collective heritage (not just the italian government). But while the use of their image should be left as free as possible, unlike a poem or a novel, they are also real objects that require constant, highly specialized manteinance and care that has non negligible costs. Is not that crazy to ask companies who profit from them to contribute back a little, so that those money can help the institutions that take care of these and other works of art. Stuff in the public domain sometimes also require the public to take care of them.

The artefacts/artworks that people would like to commercialize are hot properties that allow their caretaker institutions to draw crowds and make $$. If anything, businesses that use images of David are helping by providing free advertising and keeping these works from fading from the public consciousness.

That's what tourism revenue is for

Both this law usage and the reason of complaint from the museum are so stupid.

And I'm not usually supporting big company using public goods but in that case I think that it was legitimate

>And I'm not usually supporting big company using public goods

Do you mind if I ask why? I don't see why the size of the entity should matter one bit when it comes to the public domain and human history, nor why some other entity should, even in principle, get a permanent monopoly on artistic expression they played zero role in (or for that matter their polity played zero role in). The physical objects themselves of history are of course by definition limited and necessarily require custodianship and care. But the ideas and imagery they expressed centuries or millennia ago should have long since passed to all of humanity, all of us from the smallest to the largest. It being locked down retroactively is even worse. It's not as if a "big company" using the public domain in any way diminishes anyone else's ability to do so nor the original work.

> It's not as if a "big company" using the public domain in any way diminishes anyone else's ability to do so nor the original work.

Not OP, but big companies tend to abuse public goods after they use them. Think of all the DMCA takedown notices that these companies made for people playing classical music.

This is strange conflicted space for me. Were this the case, Disney would have had to produce nothing but original work, which would probably benefit us today but would leave us without the eventual cultural heritage that they produced (if it can ever be pulled from their claws). I'm coming more and more to the conclusion that public domain is very much like other idealogical freedoms I was raised to believe in, which is to say beautiful conceptually but possibly messy and requiring potentially painful sacrifices on the part of individuals if consistency with the ideal is the goal.

Thing is, Disney has profited immensely from public domain, and then they have done everything in their power to restrict public domain as much as possible.

Works have to be released into the public domain, or there will be nothing but licensed regurgitation of the same things.

Exactly: a huge proportion of Disney’s historical works are for existing stories which had far less IP protection than Disney’s reproductions had.

Indeed Disney is a great example. It is because of them and their greediness that copyright protection was extended so past reasonable duration in US and other countries...

I can answer this without even reading past your 2nd sentence. Because large entities are dicks. They'll take this public work for their own uses, and then attack anyone else using it as if they own the exclusive rights. And if they're large enough, they'll essentially steal whatever the work is from the public by using the law and their stable of bulldog lawyers to go after any other entity using the image they feel they own.

And it'd be great if society would effectively chill that behavior. I have no idea how. :(

The recent Momofuku chil{i,e} cr{unch,isp} situation is a great example of "large entities are dicks" though.

I know I am missing something. The article says they superimposed a model's head over David's body, and what I imagined was the statue with a Photoshop of someone else's head on it. Instead, what I see in the image included in the article is an entirely different head and body. Only the pose is the same. I suppose there must be some different image, not shown, that is the actual subject of the suit, as this one is clearly not infringing any conceivable copyright. The other alternative, too insane to consider, is that they can somehow copyright a pose. Obviously I'm just confused, but I don't get it.

Multinational corporations are going to have it rough in the future, as governments with competing (and sometimes contradictory) interests discover they have the ability to punish corporate behavior anywhere in the world. China is leading the way here.

Italy seems to be right there too. Just saw they deemed a car model name illegal because it sounds Italian but isn’t made in Italy: https://www.thedrive.com/news/italy-tells-alfa-romeo-its-ill...

Wait 'til they hear about the Pepperidge Farm cookies.

None of those words sounds even vaguely italian

The single most famous one is Milano, and there is also Verona.

So Milano and Verona are products in the Pepperidge Farm brand?

I was not familiar with the brand or their product naming

It'd be legal to produce it in Italy outside of the city of Milan. But it's illegal to produce it abroad.

I don't think they even pretend it's not protectionism.

Yeah… the Italian badge has to produce the Milano in Italy… absolutely crazy. Marketing guys who want to sell a Polish car should not be able to use the cultural cache built by Italy to do it.

What are your feelings about the Ferrari California?

Great car.

Similar feelings.

It's going to take a bit more persuasion to get auto manufacturers to move to an entirely different state than silly rules around names. And while the Italian government fixates on the past, the rest of the world is hooked straight up to the fire hose of American culture, which is to the benefit of Americans.

> while the Italian government fixates on the past, the rest of the world is hooked straight up to the fire hose of American culture

Much of modern Italian culture has direct roots in its post-War boom, with substantial portions having been grafted from Americana, e.g. pannetone, parmesan, tiramisu and quite a few "classic" pasta dishes like carbonara [1].

[1] https://www.ft.com/content/6ac009d5-dbfd-4a86-839e-28bb44b2b...

That is a great article on the invention of tradition in Italian cuisine, rightwing politics, the fallibility of popular memory, and the realities of prewar life in Europe.

It does not state that pannetone, parmesan, tiramasu, or 'quite a few "classic" dishes' are Americana.

According to the article pizzerias as a phenomenon are American. The most traditional Parmesan is American. Carbonara was an American innovation or at least arose due to American ingredients.

Whoops, bad sentence construction. That reference was for the first phrase, regarding each of those dishes being post-War concoctions or reinventions.

No worries. I often do it myself and I appreciate the article so thank you.

Also Italien: make liquorice candies named "Fjord" [1] :)

[1] https://www.liking.it/en/products/candies/hard/balsamic-fjor...

It leads to balkanization -- see Google's total withdrawal from China.

As a consumer, I recently selected a new device in large part because its cloud-affiliated software (and bespoke operating system) was written, stored, and administered in countries with appropriate and ethical legal frameworks. The competition was more feature-complete, but I concluded that I couldn't trust any of those options.

Seems more and more that to lead a completely ethical existence means sacrificing luxury, happiness, and time. Or surrender to willful ignorance.

> to lead a completely ethical existence means sacrificing luxury, happiness, and time

Hasn’t this always been true? It’s also getting increasingly easy to buy things that meet ethical standards (or more cynically, it’s easier to buy things that meet some low bar that someone setup).

> It leads to balkanization -- see Google's total withdrawal from China.

True balkanization does not occur in Italy, except Trieste and perhaps parts of Friuli-Venezia Giulia... and I put that in Italics!

I feel like EU is ahead of the curve here with cookie pop-ups. In order to comply don't you have to go out of your way to block EU viewers? At least that's how it seems to be handled by ones that care, la times I believe was one example.

And I know some of their other policies specifically call out fining based on global revenue, not EU revenue.

At some point, people will realize that companies without a physical EU footprint can just ignore it. Has anyone _ever_ been extradited over cookie banners?

The "problem" is that you could get on a list to be denied entry at the border if you ever choose to travel.

Who? The CEO? I like European travel more than most, but there's definitely a price you could pay me to give that up. LatAm is wonderful too.

In order to be able to use these public domain works without paying licensing fees, would a company have to just not do business in Italy or would they have to pull out of the EU entirely?

The court of Venice claimed world-wide jurisdiction. A German court fought back. https://web.archive.org/web/20240410141158/https://www.nytim...

I had some experience writing a book that featured many images of paintings by long dead artists. The copyright issue was not the art, but the photos, which were frequently owned by a museum. From my experience, these museums were very difficult to work with, charging exorbitant fees and very slow to respond to requests.

Does the museum have permission from David?

Actually, it's not even David; we know that David, King of Israel, was circumcised, and Michelangelo's David is not.

(What some Italian was thinking of, recycling a Hebrew King into inauthentic art sold for profit on commission, is still quite sus, but them claiming ownership of it is beyond the pale.)

Technically, to have been circumcised, King David would first need to have existed. However, even without existing, notional David could be described as having been circumcised. Presenting an image uncircumcised, as Michelangelo did, then ought to suffice to, er, sever any proprietary claim, as it cannot then be the same notional David, but another unspecified stand-in David, perhaps akin to the popularly blond and blue-eyed stand-in Jesus.

Jesus, by the way, is described in Paul as having been constructed, after the manner of Adam and of saved souls' post-resurrection bodies (even now awaiting them in heaven against the fore-ordained apocalypse), from aforesaid David's (implied captured and preserved, or allegorical) "seed". This too does not require actual existence. The waiting bodies, notional or manifest, canonically lack anything for foreskins to be attached to or severed from, perhaps a mercy, and presumably navels as well. No forecast is made about nose hair, either way. Jesus, in contrast, as a fertility totem is necessarily endowed. Who would essay to circumcise Him is an open question; theologically, He doesn't seem to need it.

Rights are generally granted to the creator of a work of art (painter, photographer, sculptor, etc...), rather than its subject.

However, given that there will probably be some difficultly in tracking down the subject's model release paperwork, your concerns are likely also valid :-)

David (and a lot of such art) was work for hire, so the artist would have no IP rights then or now.

One of the few areas where USA copyright law is more sane than many other countries.

Mickey Mouse is laughing at your comment :)

> In a statement, the museum claimed that by “insidiously and maliciously [juxtaposing] the image of Michelangelo’s David with that of a model,” the publisher was “debasing, obfuscating, mortifying, and humiliating the high symbolic and identity value of the work of art and subjugating it for advertising and editorial promotion purposes.”

If someone makes a cartoon or modified illustration of the Statue of Liberty ... would the USA (or the Port Authority or the Liberty-Ellis Island foundation) have grounds to sue and claim compensation?

A million transgressions are waiting to be brought to justice, and a dozen a day are being added to the pipeline.

> The case hinged on article nine of Italy’s constitution, which protects symbols of the nation’s cultural identity and historical memory. A related law allows the country’s public institutions to request concession fees for commercial reproductions of artworks of cultural heritage, regardless of their copyright status

Lots of discussions here on copyright but the ruling doesn't seems to have anything to do with copyright per se. Also, playing devil's advocate here: agree or not (I don't) is not uncommon for portrails of cultural/historical symbols to be regulated, just look at the ban of nazi symbolism in - Germany (Italy also bans them, but not - finland for example).

Having to pay the particular museum pushes this beyond that kind of general regulation.

Why? Seems like a perfectly fine way to pay for upkeep of museums, particularly in this case since these are public institutions.

> Why?

Because that method makes it act more like permanent single ownership than something cultural.

> Seems like a perfectly fine way to pay for upkeep of museums, particularly in this case since these are public institutions.

Whether the result is good is different from how far it's pushing, and I think the result sounds like it has the potential to be helpful. But I don't like how closely it ties revenue to the popularity of each museum's specific artifacts, since these are public institutions.

> Seems like a perfectly fine way to pay for upkeep of museums, particularly in this case since these are public institutions.

If it's culturally valuable then the members of that cultural group can (probably happily) pay for that upkeep? Presumably covering some shortage if tourism doesn't satisfy the base need to keep the artifacts intact?

It's about copyright in that ignores normal copyright rules. Falling into public domain (or equivalent) after x years is standard in the EU and most every other country.

If it's determined to be allowed in the EU other countries can go wild with what they consider cultural symbols. It's now a stash to cram in anything you don't want ever falling into the public domain. Disney would kill for a similar loophole in the US.

It's not about copyright in that nobody in the case mentioned the copyright doctrine.

Seems to be at odds with this recent UK court ruling, also about images of long-out-of-copyright works:

https://news.ycombinator.com/item?id=38817128

It'll be interesting to see where this ends up when the various countries courts issue collection notices against each other.

Wouldn’t that be a Florentine museum?

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