Michelangelo’s David and cultural heritage images. The Italian pseudo-intellectual property and the end of public domain

On 20 April 2023, the Italian Civil Court of first instance of Florence (Tribunale civile di Firenze) issued a decision that held unlawful the reproduction by lenticular technique of the image of Michelangelo’s David and its juxtaposition with the image of a male model on the cover of GQ magazine. The reproduction was not authorized by the public museum Gallerie degli Uffizi in Florence where the masterpiece is kept. The ruling of the Tribunale was as follows: “unauthorized reproduction of the image of the nation’s State-protected cultural property, in a manner distorting the cultural purpose of the same property, constitutes a civil tort that must be compensated in both pecuniary and non-pecuniary damages”. The decision mirrors the recent order, in a summary judgment, of the Civil Court of first instance of Venice (Tribunale civile di Venezia) in the Vitruvian Man (Uomo Vitruviano) case. The decisions of both the Tribunale di Venezia and the Tribunale di Firenze share some conceptual confusion. They merge and overlap pecuniary and non-pecuniary interests, such as public law (Legislative Decree 42/2004) and private law (Civil Code). This conceptual confusion hides the real interest at stake: the creation of a new form of pseudo-intellectual property (in this case, a pseudo-copyright) that would attribute to the Italian State the power to exclusively control the commercial use of cultural heritage images.