Tuesday 11 March 2014

ArmaLite in Italy's sights over Gun-Toting David ad

Here's a guest post from Ironmark Law Group IP attorney and blogger Lucas Michels on some of the copyright-related aspects of a news item that has attracted a lot of attention in European copyright circles -- ArmaLite Inc's decision to harness the iconic image of Michelangelo's David in a recent marketing campaign.  This is what Lucas has to say:
U.S. Gun Manufacturer in Copyright Dispute With Italian Government Over a Gun-Toting David

Several news outlets reported earlier this week that U.S. weapons manufacturer ArmaLite Inc. is in a copyright dispute with the Italian government over ArmaLite’s advertisement depicting Michelangelo’s David brandishing an ArmaLite AR-50A1 rifle. The ad first came to the Italian government’s attention when ArmaLite published it in the Italian magazine L’Espresso. Following the ad’s publication, Italian cultural minister Dario Franceschini warned ArmaLite that, beyond being offensive, their ad violated Italian copyright law and that the Italian government would take action to stop the ad.

The Italian government can likely take such action because it claims ownership to Michelangelo’s David and the moral rights associated with the famous work. Although no legal claims have been filed in Italy or the United States, the Italian government would likely claim that the ad constitutes a moral rights violation under Italian copyright law because it is “prejudicial to the honor or reputation” of Michelangelo and it is a “distortion” and/or “mutilation” of David pursuant to Article 20(1) of the Protection of Copyright and Other Rights to Exercise (Law No. 633 of 22 April 1941).

This possible claim is by no means novel, even for an IP attorney from a weak moral rights jurisdiction like United States. Yet, what makes this dispute interesting is the possible defenses that ArmaLite could assert. ArmaLite could not likely argue that their ad is permitted as fair use, even under more lenient U.S. fair use standards (17 U.S.C. § 107), because the ad has a commercial purpose and uses the work in its entirety. An Italian Court would accept a fair use defense even less as Italy does not recognize the fair use doctrine under its statutory law, and has only acknowledged a few permissible exceptions to the unauthorized use of a protectable work.

Absent fair use, one of the only potential defenses that ArmaLite may assert is that the Italian federal government does not own Michelangelo’s David. It was reported in 2010 that the City of Florence (where David now resides) disputed the Italian government’s claim of ownership over David. The federal government asserts that they own David by having paid for moving the statute to its current location in Florence after Italy was unified in 1873. In contrast, Florentine officials claim that the Florence City Hall originally commissioned David from Michelangelo in the 16th century, thereby entitling the City of Florence to ownership over the work. To date, the Italian government and the City of Florence have yet to settle their dispute as to the ownership of David. 

Although it remains to be seen how the Italian federal government will pursue their dispute against ArmaLite, or who has valid title to Michelangelo’s David, the one thing no one disputes is that ArmaLite should have known that displaying David with an assault rifle in an Italian publication would have an adverse fallout in Italy.


Anonymous said...

I may be obtuse, but I cannot see that a moral right is infringed, if we go by the letter in the Italian Legge 633, Art. 20 (1), because it states that the creator may oppose: ".... ogni atto a danno all'opera stessa, che possano essere di pregiudizio al suo onore o alla sua reputazione" [any damaging act to the work itself that may prejudice his honour or his reputation].

But this is not the work itself that is involved in the advertising that has been going on, it is merely a photograph. Michaelangelo did not create a flat picture, so it is not the work itself. It would have been different if there had been a photo-op with ladders leaning on the statue and armament people installing the gun.

Merely a practical point of view.

Kind regards,

George Brock-Nannestad

Andy J said...

As was pointed out in Alberto Bellan's piece on the IPKat blog on this subject, ownership of the physical sculpture and any claim to moral rights are two different things. According to Wikipedia Legge 633 describes the operation of moral rights as follows: "In the author-centric Italian copyright law, moral rights are eternal, non-transferable, and inalienable. The author, even after transfer of economic rights, retains the right to claim authorship and to oppose mutilation of the work or any act that would be prejudicial to her honour or reputation (Arts. 20, 22). Upon the death of the author, these rights may be relied upon by her family and descendants (Art. 23)."
If this is a correct rendition of Italian law, then it is immaterial whether the City of Florence or the State of Italy owns the title in the work, since neither can lay claim to the moral rights.

Anonymous said...

Maybe Wiki is not the best source for legal advice. The subsequent paragraph [2] in Art. 23 says that when a public end so requires the Minister of Culture may take action.

To me the question still is -- and it must be a general problem -- is a moral right infringed if a photograph of the protected work is modified?

Kind regards,

George Brock-Nannestad

mathinker said...

> To me the question still is -- and it must be a general problem
> -- is a moral right infringed if a photograph of the
> protected work is modified?

I find it amusing that none of the comments up to now see any problem with a nation state conniving so that moral rights on certain particular creative works will never expire, not even after a reasonable amount of time.

If we're OK with this power grab by Italy, we should make sure that comparable cases are treated equally. For example, I think that Israel would have a good case to demand that all those unauthorized translations of the Old Testament into languages other than the original be destroyed. After all, many Jewish scholars believe that a mistranslation of the original text of Isaiah 7:14 led to the Christian dogma of "virgin birth". It's time to set things right, wouldn't you think? Hm, maybe the Vatican might reconsider the propriety of Luther's German translation of the New Testament which set off that irritating "Reformation" thingy...

To get back to the point, everyone who knew Michelangelo personally died at least 330 years ago. I find it morally outrageous that anyone could propose that "moral rights", which obviously purport to protect the feelings and reputation of the artist and possibly people close to him, could apply in this case. Yet another case highlighted by this blog where it seems that politicians have jumped on the opportunity to hypocritically warp human sympathy (or apprehension) to advance their own agenda.