The commercial exploitation of works in the public domain and the cultural heritage code: the Ravensburger case.

The issue of the commercial exploitation of works of art in the public domain was at the centre of a recent legal dispute between the Gallerie dell’Accademia in Venice and the German companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian branch, represented by Ravensburger S.r.l.. The issue concerned the use of the image of Leonardo da Vinci’s Vitruvian Man, a public domain work preserved at the Gallerie dell’Accademia in Venice, to produce and sell puzzles without authorisation or payment of a fee.

The order issued by the Court of First Instance of Venice, which prohibited the defendants from using the image of the work for commercial purposes and condemned them to pay a penalty of €1,500 per day in case of delay in the execution of the precautionary order, raised many perplexities and questions about the application of the concept of public domain and the compatibility of Italian laws with European copyright laws.

First, it is important to clarify the meaning of public domain. It is a set of artistic, literary, scientific and technological works that are no longer subject to copyright protection, either because the period of protection under the law has expired or because the author has chosen not to protect them. Works in the public domain, at least in the abstract, can be used freely by anyone, without the need to request authorisations or pay fees. 

In fact, Article 14 of Directive (EU) 2019/790 provides that: “Member States shall ensure that, upon expiry of the term of protection of a work of the visual arts, the material resulting from an act of reproduction of that work is not subject to copyright or related rights.“

However, the case of Ravensburger’s jigsaw puzzle depicting Leonardo da Vinci’s Vitruvian Man shows that the practical application of the public domain concept can be more complex than one might think. Especially when there are national rules in open conflict with EU principles. 

In fact, in what would seem to be a rule in stark contrast to the above-mentioned principle, according to the Italian Cultural Heritage Code, faithful digital reproductions of cultural heritage works – including those in the public domain – may only be used for commercial purposes upon authorisation and payment of a fee. 

This means that cultural institutions that hold works in the public domain have the right to request authorisations and fees for the commercial use of faithful digital reproductions of the works, even if they are no longer encumbered by copyright. Therefore, the decision to request authorisation and payment of a fee is left to the discretion of each cultural institution, as provided for in Articles 107 and 108 of the Cultural Heritage Code. 

Lastly, it is worth emphasising that the case in question is not an isolated event; in fact, it was only a few months ago that the Uffizi Museum took legal action against a well-known French fashion house for illegally reproducing the image of Botticelli’s Venus.

In conclusion, it should be noted that these cases are bound to leave behind numerous ethical as well as legal issues such as great uncertainty about the use of cultural heritage in the entire single market, the risk of hampering artists’ creativity, and a reduced and impoverished public domain. In order to address these problems, it is hoped that the European Court of Justice will soon have the opportunity to clarify that the public domain cannot be restricted, especially by rules unrelated to copyright and related rights, which undermine the clear intent of the European legislator to support the public domain.