Reproduction of the artwork

by Atty. Maria Rosaria Camardi – Master in Corporate Law of MELIUSform Business School

The work of art is defined by law as an intellectual work of a creative nature, belonging to literature, music, figurative arts, architecture, theater and cinematography, whatever the manner or form. of expression.[1] To find legislative protection, the work must necessarily have the characteristics of novelty and originality, therefore it must be different from any other work by other authors.

According to the Neo-Platonist philosopher Plotinus, the work of art is the idea, the perfect image that the artist has in him and on which he bases his work. It is precisely from this definition that we could start to understand how the author of the work of art retains both moral rights and patrimonial rights on the product of his ingenuity.

The moral right takes the form of recognition of paternity over the work, while the patrimonial rights have as their object the economic use of the work.

The reproduction of the work of art undoubtedly falls within the patrimonial rights. Pursuant to the law, reproduction is that operation consisting in the multiplication in copies, of all or part of the work, by any means.[2] This right belongs exclusively to the author and is not transmitted with the transfer of the work, unless otherwise agreed, resulting from a written deed.[3] Indeed, the sale only transfers the property right to the work, but not the rights to exploit it economically.

Precisely because of the patrimonial nature of the protected right, reproduction becomes illicit only if the agent’s purpose for profit exists. Therefore, reproduction for exclusively personal purposes, without profit, is perfectly lawful.

In the same way, the reproduction of the work is possible, by a person other than the author, when the same occurs for the purpose of criticism or discussion.

American doctrine justifies this use with the principle of “fair use”, in order to ensure the diffusion of the work of art and therefore cultural progress.[4]

Reproduction of the work for purposes other than those described will result in both criminal and civil liability. Indeed, the law punishes[5] whoever for the purpose of making a profit counterfeits, alters or reproduces a work of painting, sculpture or graphics, or an object of antiquity or of historical or archaeological interest.[6]

To be exempt from liability, the person who copies the work must indicate non-authenticity. In other words, the copy will need to have written notation that it is a copyright copy. When, due to the size of the work, the annotation on the work is not possible, it is necessary that the same is accompanied by a declaration which takes the name of certificate of forgery of authorship.[7] It is clear that when purchasing a work of art it is strongly recommended to request all the certificates that accompany the work.

The parody of the work deserves a separate mention. When the work is the source of a new message and artistic meaning, it has the characteristics to become an original itself.[8]

A particular case of technical reproduction is certainly photography[9]. In 2006 the Musée d’Orsay in Paris hosted the exhibition L’opera of art and its reproduction, che exhibited photos of works of art from the Museum’s collection. It is necessary to specify right from the start that the copyright law prohibits any reproduction of the work, both direct and indirect. It is evident that in a museum there are works subject to different protections. In fact, there are works subject to copyright legislation which, in relation to patrimonial rights, remains on the property for a period of 70 years from the death of the subject. Once this period of time has expired, the works become public domain, with the consequent possibility of free use by the community. Finally, there are works which, 70 years after the author’s death, are declared of cultural interest, thus becoming cultural assets[10]. These distinctions are of fundamental importance in order to understand who is the subject who may, from time to time, authorize the reproduction. In our country, the payment of royalties and fees is required for the reproduction of cultural heritage[11]. However, it must be added that since 2014, with the Art bonus decree, the reproduction of cultural heritage carried out by private individuals for study and non-profit purposes has been liberalized.[12]

There is no doubt that the photograph of the work is itself suitable for becoming a work of art, if this possesses the requisites of innovation and originality.

The Court of Milan has specified that a photograph can be defined as a work of art, “when the author has not limited himself to a reproduction of reality, but has inserted his own imagination, his own taste, his own sensitivity into the shot, so as to convey his own emotions. The artistic character does not depend on the attribution of the reproductions to famous photographers, on the fact that the photograph is taken from an archive and on the celebrity of the portrayed subject”[13].

Furthermore, in recent times, with the closure of museums, caused by the pandemic, there has been extensive use of virtual exhibitions, in which the physical work is not exhibited, but a digital substitute for it. Already in recent years, the European Union has invited the Member States to review their internal legislation, in order to favor, in order to favor the digitization projects of works of art[14].

Here too we must ask ourselves whether or not the digitization of a work gives rise to some form of elaboration of the work itself. In principle, the operation consists of a purely mechanical activity, devoid of innovation, but whenever a personal and innovative elaboration arises from the process, there will be the creation of an intellectual work that will find protection under the law on copyright. Obviously, in the case of reproduction of the work, even if digitally, it will be necessary to acquire the prior consent of the author.

From what has been said, emerges the need to balance the protection of the artist’s rights with the need not to put brakes on the free circulation of culture which must reach everyone without distinction. To learn more about all the issues related to industrial and intellectual property, you can rely on Masters in Business Lawyerto the Master in Corporate Law or al Specialization Course in Intellectual Property Of Meliusform Business School.

[1] Art. 1 Law 633/1941 on the protection of copyright

[2] Art. 13 Law 633/1941 on the protection of copyright

[3] Pursuant to article 109 of the Law on the protection of copyright: “The transfer of one or more copies of the work does not entail, unless otherwise agreed, the transmission of the rights of use, governed by this law”

[4] The Copyright Law of the United States of America reads: “Limitations on exclusive rights: Fair use. The fair use of a copyrighted work … is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 1) the purpose and character of the use, including whether such use is for of a commercial nature or is for non- profit educational purposes; 2) the nature of copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4) the effect of the use upon the potential market for or value of the copy.

[5] Art. 178 Cultural Heritage Code

[6] The Court of Milan with sentence n. 7480/2017 clarifies that: there is counterfeiting when the violation consists in the illicit exploitation of the economic rights of the author only (both when the original work is abused without any modification, and when it is modified by the counterfeiter) but respecting the right of paternity of the work; there is plagiarism when the illegitimate appropriation of the authorship of the work and its creative elements occurs. In such cases, there is a violation of both the moral copyright and the right of economic use; instead there is plagiarism-counterfeiting when the work is illegally reproduced and attributed to a person other than its author

[7] Art. 179 Code of cultural heritage and landscape

[8] On the issue Court of Venice ord. Precaution of November 6, 2015

[9] Walter Benjamin, The work of art in the age of its technical reproducibility

[10] Based on the art. 2, co. 2, of Legislative Decree 42/2004, immovable and movable things are cultural assets which, pursuant to articles 10 and 11, present artistic, historical, archaeological, ethno-anthropological, archival and bibliographic interest and the other things identified by the law or on the basis of the law as evidence having the value of civilization.

[11] Art. 108 legislative decree n. 42 of 2004

[12] Law n. 106 of 24 July 2014

[13] Court of Milan sentence n. 12188/2016

[14] Recommendation of 24 August 2006 and 27 October 2011

Reproduction of the artwork – Ius in itinere