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.