Advertising campaigns making use of historic buildings or famous statues and paintings.
During my professional carrier as a consultant to the marketing industry I have been asked many times whether it would be possible showing the Colosseum in Rome, the Duomo in Florence, Pisa’s Leaning Tower, Michelangelo’s David or Da Vinci’s Last Supper in Milan in an advertising campaign. Usually, the initial assumption was that such use would not lead to significant legal issues as those buildings and art works – created several hundred years ago – had necessarily to be in a situation defined as ‘of public domain’.
Not an issue because of a ‘public domain’ status?
Such approach results quite understandably from a strictly copyright perspective. However, I always had to tell my inquiring clients that such assumption, while probably correct under their national (foreign) law, did not consider a local ‘peculiarity’ (which could also be found in some other jurisdictions).
Cultural heritage protection’s impact: Italy.
In Italy, historical buildings and most art works of value fall into the category of ‘cultural heritage’. Hence, they are such subject to the provisions set both, by the Italian Constitution as well as by Statute Law (specifically, the Code for 'Arts and Landscape'). Therefore, the problem of using historical buildings and art works in advertising needs to be dealt with not from a ‘public domain and copyright’ perspective but considering the provisions of such Code.
If ‘cultural heritage’ is owned by public entities - e.g. the State, the Regions, Municipalities, Public Foundations or Institutions – (which is frequently the case) this Code provides for the following restrictions: (i.) any use of for commercial purposes must respect its role/function of public interest as well as its natural destination (e.g. no strip club ads on a church or toilet paper promotion, featuring a statue or a painting of the Holy Virgin), (ii.) such use requires in-advance authorization by central or local authorities in charge of supervision, (iii.) the authorization is usually issued against payment of a fee and after an in-advance check of the planned campaign (the advertiser may easily be required to make changes), (iv.) therefore, the process often involves some - time consuming - ‘back and forward’ with the supervising authority, (v.) the authority takes its decision on whether giving or denying the authorization on a case-by-case basis (meaning that no guidelines with useful information are available).
Privately owned ‘cultural heritage’ – if notified as such – is also subject to special obligations and legal/administrative requirements: the owner must take care of the maintenance, needs in-advance authorization from the Fine Arts Office before performing interventions on the notified items, must inform such Office about the location of the items, faces restrictions as to selling or exporting them.
In such case, a use for commercial purposes of such items is less critical (if it does not cause prejudice to them). Therefore, use for advertising or promotional purposes is possible and legitimate and does not need in-advance authorization from local Authorities (provided the items are not moved from their current location). Obviously, the owner must agree on such use.
Cultural heritage protection’s impact: the situation in other countries.
Italy is not the only country with such restrictions in its legal framework. In Greece Statute Law makes the use for commercial purposes of ancient monuments’ photos subject to a license from Ministry of Culture and Sports (issued against a fee). Illegal use results in a criminal offense (punished with imprisonment up to 3 years). In Belgium similar restrictions are in place. In Denmarkthe use of historical buildings is allowed without any restrictions but not that of art works. In France the Code du patrimoine (i.e. the Heritage Code) sets provisions like those in force in Italy and requires in-advance authorization for using - for commercial purposes - buildings constituting national domains (in August 2017 the French Conseil Constitutionellhas dismissed a challenge of such provision). A peculiar situation is to be found with respect to the Eiffel Tower in Paris. While the tower itself is in ‘public domain’ (its image therefore being available for free use), the Société d'Exploitation de la Tour Eiffel– in charge of managing the monument – considers the lightening system of the tower (and the show it performs when operated after dawn) as an ‘artistic work’, benefitting from IP protection and allowing to take pictures only after prior authorization.
You may wonder why the European Union has not felt necessary addressing this situation through a uniform and harmonizing set of provisions. It tried to do so and issued to the purpose Directive no. 2001/29/EC of 22 May 2001 with the aim of granting “the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society” (so Article 1). With respect to the problem we are dealing here, the Directive sets (in Article 5/3/h) that “Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3” for the “use of works, such as works of architecture or sculpture, made to be located permanently in public places”. Unfortunately, the implementation of such provision on a national level is left to Member States’ discretion. Hence, different – country specific – regulations throughout the European Union.
Careful when using cultural heritage in advertising campaigns!
Advertisers are therefore well advised by duly considering these aspects and to check in advance the legal implications they could face by using historic buildings or art works in their marketing campaigns.