Ariel Goldberg a 1L JD candidate at Osgoode Hall Law School.
French fashion brand Jean Paul Gaultier’s garments featuring Botticelli’s Birth of Venus are heading off the rack and to legal battle. Uffizi Galleries (“Uffizi”), based in Florence, Italy, are pursuing legal action against Jean Paul Gaultier for “illicit” unauthorized use of Botticelli’s Birth of Venus which violates Italy’s Codice dei Beni Culturali (Code of the Cultural and Landscape Heritage )(the “Italian Code”). The Code of the Cultural and Landscape Heritage’s legal force is separate from copyright laws and remains in effect when copyright protection does not.
Jean Paul Gaultier’s “Le Musée” capsule collection uses Botticelli’s Birth of Venus on various garments including a scarf, skirt, sleeveless top and trouser. Jean Paul Gaultier originally used Birth of Venus in its S/S 1995 Collection on a sheer mesh top. In April 2022, Uffizi sent a cease-and-desist in response to Jean Paul Gaultier’s current use of the Birth of Venus, but the fashion brand never replied and continued its unauthorized use.
(Photo Credits: The Fashion Law; Jean Paul Gaultier)
The Italian Code , which came into effect in 2004 and was updated in 2016, operates independently from copyright law. The Italian Code protects “objects with a ‘cultural’ interest” which can be historical, artistic, ethno-anthropological and archaeological. Following this designation, objects require authorization and a licence fee to be used commercially by third parties regardless of whether the work is in the public domain. Personal uses of the images by private individuals for the purpose of creative expression, study, research and enhancing cultural heritage are excluded from these legal obligations.
The public domain refers to works not protected by copyright, which means the works can be used without acquiring permission or paying a fee. Generally, copyright protection expires after a period following the death of the author. In Canada, under the s. 6 of the Copyright Act, copyright protection remains for the life of the author and 50 years following the end of the calendar year the author died in unless otherwise stated within the Act.
The Birth of Venus is in the public domain because it was created by Botticelli in the mid-1480s. However, Gaultier allegedly violated Italy’s Cultural Heritage Code by proceeding with commercial use of the image without authorization and paying a licence fee. Jean Paul Gaultier’s use would not likely qualify for creative expression exception because of its commercial nature and because Jean Paul Gaultier is a fashion brand rather than private individual. Felicia Capoigri, a lawyer and comparative cultural heritage, art and fashion law scholar, states that Jean Paul Gaultier could argue that some uses are “creative re-elaborations” of Botticelli’s Birth of Venus which would exclude the use from the “cultural property licensing scheme”.
Uffizi’s Director Eike Schmidt commented that “fashion designers regularly use our images” such as Leonardo da Vinci, Caravaggio, Titian, Raphael and Giotto di Bondone. The prevalent use of Uffizi’s artworks despite Italian law led to Uffizi using software to police whether artworks are used to sell products, especially on social media. This hyperfocus on social media reflects the double-edged nature of social media, providing a greater connection through increased sharing and platforms while also allowing easier access and subsequently, easier appropriation of works.
Last year, a similar conflict emerged from the use of the Birth of Venus. Uffizi took issue with Pornhub’s online guide to erotic art which used the artwork. Hopefully, the Birth of Venus does not birth more legal issues in the immediate future.