US returns looted art to Italy

This week saw the return by the United States of 26 pieces of art to Italy. Each work had been separately looted and subsequently smuggled out of Italy and into the US.

A Repatriation Ceremony was held at the US Embassy in Rome to celebrate the return of the pieces to Italy. The ceremony was a culmination of a lengthy investigation carried out collaboratively between the US Homeland Security Investigations (HSI) and the Carabinieri Tutela Patrimonio Culturale (TPC).

In his speech at the Ceremony, US Ambassador to Italy, John R. Phillips, noted that:

"Italy is blessed with a rich cultural legacy and therefore cursed to suffer the pillaging of important cultural artifacts. The collaboration between agents from HSI and investigators from the TPC has borne fruit in returning some important artifacts to their rightful home in Italy. 

The plundering of historical and cultural artifacts is among the oldest forms of cross-border organized crime. INTERPOL estimates that the illicit trading in cultural property produces more than $9 billion in profits each year – only human trafficking, narcotics and weapons trades generate more illicit revenue. 

The crime may be ancient, but the perpetrators are very modern. The use of the Internet has provided these criminals the ability to acquire, transport, advertise and sell valuable cultural property swiftly, easily and stealthily and while making it easier to evade detection by law enforcement agencies. 

Fortunately, the customs laws of the United States allows agencies such as HSI and CBP the ability to seize, forfeit and ultimately return cultural property that is brought into the United States illegally." 

Some of the artworks that were returned include:

Sleeping Beauty, a 1,800 year-old, ancient Roman marble sarcophagus lid of sleeping Ariadne, which investigation revealed was smuggled out of Italy. HSI New York special agents seized the sarcophagus lid with a warrant issued from the Eastern District of New York.

A 5th century B.C. Etruscan black figured Kalpis, which is believed to have been looted in Italy and smuggled into the United States in 1981. After an investigation, our HSI office in Cleveland, Ohio, seized the Kalpis.

A 5th century B.C. red-figured Attic Volute Krater attributed to the Methyse Painter. This Kalpis was seized by HSI St. Paul, Minnesota.

A 17th century Venetian bronze breech-loading gun, which was seized by CBP officers in Boston as it was being smuggled into the United States. After an HSI Boston investigation, the cannon was successfully forfeited.

Reportedly, no criminal charges have been filed in relation to any of returned artworks since, in some cases, the statute of limitations on any crimes would have expired, and, in others, the paper trail for the piece's import into the US was too difficult to reconstruct. In addition, these pieces represent but a fraction of the art currently circulating on the black market. Nonetheless, as Phillips stated "every victory, every piece that is returned, every bit of cultural history that can be restored to its rightful home is a measure of progress."

Source: The New York Times, 26 May 2015

Kitchen art a bargain at 23 euro

The two paintings shown above, displayed under police guard, were found hanging on an Italian factory worker's kitchen wall, where they had been for the past 40 years. According to the BBC's version of the story, here, the art works -- by Paul Gauguin and Pierre Bonnard -- are said to be worth at least 10.6m euros (£8.8m). The story goes that they were stolen from a collector's London home in 1970 and, having been left on a train in Italy, with no indication of origin, they were purchased by a Fiat worker at a lost-property auction in 1975 for the princely sum 45,000 Italian lire (that's around 23 euros, or £19).

Italian culture minister Dario Franceschini claims this as something of a triumph:

"It's an incredible story, an amazing recovery. A symbol of all the work which Italian art police have put in over the years behind the scenes".

It's not immediately clear, though, what the Italian art police have been doing since 1970 since their involvement only appears to have started when the factory worker's son, who had a suspicion that one might be an original Gauguin, contacted art experts. If they'd attended the same lost property auction as the works' purchaser they might have been able to intervene a little earlier ...

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.

New "Dolce vita" for the Trevi fountain thanks to Fendi?

A famous scene taken from the Fellini's movie "La dolce vita"
with Anita Ekberg and Marcello Mastroianni
in the Trevi Fountain

One of the most important Italian fashion house, Fendi, will fund the restoration of five of Rome's most important fountains, beginning with the Trevi one. 

The Trevi Fountain, completed in 1762 and set of one of the most famous scenes of Fellini's movie "La dolce vita", was last restored in 1989 but a new restoration seems strongly needed after chunks of stone crumbled and fell from the fountain's façade last June.

The project, titled "Fendi for Fountains", will also cover the restoration of the Four Fountains located at the insersection of Via delle Quattro Fontane and Via del Quirinale in Rome. Fendi has given € 2.1 million to restore Trevi, while giving a "significant contribution" of € 320,000 for repairing the other Four Fountains.

The restore of the Trevi Fountain will last 22 months ending within 2015. Such works are announced as a real "gift", an act of cultural patronage from the fashion house to the city of Rome without being a sponsorship. 

In this regard, the mayor of Rome informed that the city approved a new resolution encouraging not only sponsorship but even free donation with the aim of protecting and enhancing Italian cultural goods.

Such donations have the obvious effects to help cultural entities - with a more and more reduced cultural budget - to preserve the artistic patrimony saving the cultural memory of Italy. In addition, since it deals with a donation rather than a sponsorship, there will be no Fendi's advertisement on the restoration . 

However, charitable monetary donations for cultural purposes have at least two undeniable advantages for companies:  an effective marketing return but, above all, they are wholly tax-deductible (with no upper limit contrary to sponsorship) from the company income according to Art. 100, paragraph 2, lett. m) of the Italian Income Tax Code. 

Such benefits can better explain why many Italian fashion companies are helping Italy's chronically underfunded cultural heritage, as the footwear company Tod's which will fund the restoration of Colosseum for 25 milllion €. 

Red bus suggests copyright law is not black and white: an Italian perspective

A red bus in Italy - including a
reference to another
English copyright case

The English case - Temple Island Collections Ltd v New English Teas Ltd -  is arising a great discussion not only in England but even in other European legal circles.

As Rosie correctly underlined in her last post on January 24, this English decision could be objectionable since the Judge focused more on the defendant's attempt to sell more tea - thanks to the association to a famous image - rather than on considering whether a substantial part of the original photograph was copied or not. Therefore, the Judge seemed to be more interested in protecting idea rather than the expression of it, going beyond the scope of copyright.

In Italy, as in other civil law countries, the decision would have probably been the same: the red bus photograph would be considered a copyright protectable work according to art. 2, n° 7 of Italian Copyright law (law n° 633, on April 22, 1941), so that the defendants  would have committed a copyright infringement taking a substantial part of the claimant's photo.

The level of creativity requested to a photograph in order to be considered copyrightable is quite low in Italy. It is sufficient, according to caselaw, that the author's personality emerges through, by way of example: the selection of lights and their sources, the visual angle, the choice of warm and cold colours, at the end, i.e. when the photograph is not a mere copy of reality lacking of any creative trait.

Nevertheless, in Italy the claimant would have pleaded not just copyright protection but even unfair competition, which can be considered, unlike the English tort of passing off, a general remedy against damaging dishonest practices committed by competitors. 

Indeed, the defendant's behaviour could theoretically embody two of the three hypothesis of unfair competition provided by article 2598 of the Italian Civil Code. The first hypothesis occurs when the competitor uses names, distinctive signs or makes any act that can create confusion with the competitor's products or activity, whereas the second one punishes the disparagement of a competitor's reputation or appropriation of a competitor's goodwill.

The defendant's behaviour could be considered confusing, besided being deemed as misappropriation of the claimant's goodwill according to the Italian provision on unfair competition.

Art Swap

Despite the recent reports of Italian culture literally crumbling to pieces, they may have found a solution for both maintaining and spreading the influence of their less fragile art forms. The Italian and Chinese governments have teamed up in a five-year, renewable deal. The Chinese government are to operate an exhibition space at Rome's Palazzo di Venezia, while the Italians will operate a space in a wing of the National Museum of China in Beijing.

The culture trade is part of a gradual but steady move by China to establish itself at the centre of the art scene. When questioned about the deal, Mario Resca, the Italian director general of museums and cultural sites, went so far as to state that:

"In the next 100 years, this address [the Italian art site on TiananmenSquare] will be the most important in the world, not Fifth Avenue in New York, not London, but Beijing."

The first show in China's new Rome space is already on view. "The Two Empires: The Eagle and the Dragon," displays 450 similar yet contrasting artifacts comparing the art and culture of the Roman Empire with the contemporaneous Qui and Han dynasties (200 BC-200 AD).

Source: Art Info