IP rights in art in Italy

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

Copyright vests automatically in the creator without the need to register (article 6 of Law No. 633 of 22 April 1941 - the Italian Copyright Law (ICL)). In order to establish the date of creation in case of dispute on conflicting copyrights, it is advisable to deposit a photograph of the copyrighted work with the Italian Society of Authors and Publishers (SIAE) or a notary public.

What is the duration of copyright protection?

Copyright protection lasts for 70 years after the death of the author (article 25, ICL).

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

Artists have the right to publish their work, which includes the right to exhibit their creation in a public venue (article 12, ICL).

It is questionable whether this right should prevail over the owner’s right to exhibit his or her artwork. Owners have the full and exclusive right to enjoy and dispose of their property, within the limits established by law (article 832, ICC). It could be argued that when the artist has sold his or her work to a collector, especially if this has occurred during a fair or an exhibition, his or her right to publish the work is exhausted. However, the artist could always try to enforce his or her moral right in case his or her artwork is exhibited in a manner or venue that he or she considers detrimental to his or her honour or reputation (see question 30). Furthermore, the copyright holder’s consent is always required for reproductions of the artist’s work in catalogues and marketing material related to an exhibition.

Owners and exhibition curators should not be considered liable if they fail to secure the artist’s consent before an exhibition, although it is customary and advisable to obtain to do so.

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

The copyright owner’s consent always needs to be obtained for the reproduction of artworks in printed and digital museum catalogues or in advertisements for exhibitions.

An exception is provided in article 70 of the ICL for low-resolution reproductions, whose publication on the internet is permitted for non-profit, scientific and educational purposes, although the entry into force of the exception is subject to an implementing decree defining the meaning of scientific and educational purposes, which has not been enacted yet.

Are public artworks protected by copyright?

Public works are protected by copyright. In Italy there is no copyright exception allowing reproduction of public monuments (ie, freedom of panorama; see article 5, paragraph 3(h) of Directive 2001/29/EC).

Street art is also subject to copyright, although most cases involving street artists have been criminal law cases, where the artist faced criminal liability based on the specific offence consisting of damaging or spoiling a public space or private property (article 639, ICC).

Does the artist’s resale right apply?

The artist’s resale right (ARR) is provided by articles 144 et seq of the ICL (implementing Directive 2001/84/EC) and is an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.

The ARR applies to all acts of resale involving sellers, buyers or intermediaries who are art market professionals, such as auction companies, art galleries and, in general, any dealers in works of art.

The ARR lasts for 70 years after the death of the artist, and its beneficiaries are the artists and their heirs. It is granted to Italian artists or non-EU artists residing in Italy; EU nationals; and citizens of a third country, provided the laws of that country recognise the same right applicable to Italian nationals.

The ARR is set at the following rates:

• 4 per cent for the portion of the sale price up to €50,000;
• 3 per cent for the portion of the sale price from €50,000.01 to €200,000;
• 1 per cent for the portion of the sale price from €200,000.01 to €350,000;
• 0.5 per cent for the portion of the sale price from €350,000.01 to €500,000; and
• 0.25 per cent for the portion of the sale price exceeding €500,000.

The total amount of the royalty may not exceed €12,500. The ARR does not apply if the sale price is lower than €3,000.

According to article 144, paragraph 3 of the ICL, the ARR shall not apply to acts of resale where the seller has acquired the work directly from the author less than three years before the resale and where the resale price does not exceed €10,000.

Although article 152 of the ICL provides that the ARR should be charged to the seller, following the European Court of Justice judgment of 26 February 2015 (Case C-41/14, Christie’s France SNC v Syndicat national des antiquaires), the prevailing interpretation of article 152 of the ICL is that the parties to the sale contract may provide that the ARR vests in the buyer.

The SIAE is the only entity entitled to collect the ARR and pay it to the right holder.

What are the moral rights for visual artists? Can they be waived or assigned?

Pursuant to article 20 et seq of the ICL moral rights are the rights to claim authorship of the work and object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, that would be prejudicial to the artist’s honour or reputation.

Moral rights are perpetual and, after the death of the author, can be enforced by the spouse, the children or, in their absence, the parents or the lineal descendants or, in their absence, the siblings and their descendants.

Moral rights cannot be waived or assigned (article 22, ICL).