‘Pure Diva Goddess Beauty’: Jean Paul Gaultier, Pornhub and the Vagaries of Italian Cultural Heritage Law’

When describing his vision for Jean Paul Gaultier’s Spring 2022 Haute-Couture collection, Bruges’s very own fashion prodigy Glenn Marten described Gaultier’s vision of a woman as “pure diva goddess beauty” – the irony of which, considering recent legal developments, is not lost on me. 

Jean Paul Gaultier, a world famous Frenchman referred to as “l’enfant terrible”, is also an incredibly talented designer. It seems, however, that his expertise in Italian cultural copyright law is lacking, which, I don’t know about you, I personally find shocking. Jean Paul’s fashion brand, aptly named “Jean Paul Gaultier”, released a collection in April of 2022, which used the ‘Birth of Venus’ by Botticelli, housed at the Uffizi, Florence. The Uffizi says that they notified Jean Paul Gaultier in April of the unauthorised use of the image, however, the brand continued to “make use of the imagery on an array of garments and accessories”. The gallery has now commenced legal action against Jean Paul Gaultier for this alleged infringement. This high profile case, which refers back to the Italian Code of Cultural Heritage and Landscape (Legislative Decree 22 January 2004, No. 42), demonstrates the newfound confidence of the Uffizi – founded, one assumes, in light of the recent success in their dealings with Pornhub in the summer of 2021. 

Unfortunately for both you and I, the Italian Code of Cultural Heritage and Landscape not only lacks a catchy acronym (ICCHL doesn’t really have a ring to it, and no, I checked in Italian and CBCP isn’t much better), but it is also shrouded in ambiguities and differing interpretations. This Code is designed to protect “objects with a ‘cultural interest’” which encompasses anything that can be interpreted as having an “artistic, historical, archaeological and ethno-anthropological interest”. Giuseppe Calabi, a member of the Harvard Law School Leadership Council of Europe and all-round clever bloke, puts it thus, “As a general rule, objects with a cultural interest made by non-living authors more than 70 years ago may be declared of cultural interest. Conversely, objects made by living artists or by non-living artists less than 50 years ago cannot be declared of cultural interest and are not subject to cultural heritage protection. Objects with a cultural interest made by a non-living author between 50 and 70 years ago may be declared of cultural interest only if they show an exceptional interest for the integrity and completeness of the Italian cultural heritage.”.

 As you can see, assuming you haven’t dozed off, there is a margin for interpretation that allows certain experts such as Dr Enrico Bonadio, expert in the field of IP (intellectual property, for the uninitiated), to take issue with the potential for custodians of old artefacts monopolising the use of these objects of great cultural significance. For reference, when it comes to copyright law in the UK, literary, dramatic, musical or artistic works are protected for 70 years after the author’s death. ‘The Birth of Venus’, on the other hand, was painted in the mid-1480s, and Botticelli passed beyond this mortal realm in 1510. To make things worse and/or more confusing, the painting is in the public domain, meaning it is free from copyright. As Bonadio puts it, “it is one thing to rely on criminal law to stop crimes and another to turn copyright upside down so as to indirectly be able to monopolise artistic works, which are simply too old to be protected.”. 

I appreciate that these technicalities are a bit boring and you might have only gotten this far to find out what Pornhub has to do with all of this. Well, Pornhub, in a raunchy “Buzzfeed-esque” publication of an “interactive guide to some of the sexiest scenes in history”, used images of ‘The Birth of Venus’ along with several other masterpieces from the Uffizi. The Uffizi sent a strongly worded letter to the pornography platform, which if my mother is reading I had never heard of before, This then led to Pornhub swiftly taking down any artworks from Uffizi. 

This isn't the first time that this has happened. The use by travel agency “Visit Today” of the image of Michelangelo’s David in 2017 in order to sell unofficial tickets for guided tours of the Galleria dell’Academia. This action violated Article 108 of the Cultural Heritage Code (ICCHL, if you will) which stipulates the need to request permission to reproduce images for monetary gain. A significant takeaway to note is whether or not the image of works, monuments, buildings of cultural significance are debased, exemplified by two rulings in particular. Firstly, in a classically (small c) tone-deaf advertisement for ArmaLite Inc.’s AR-50A1, Michelangelo’s David is depicted with a rifle, which, I might add, would certainly make him the bookies favourite in his fisticuffs with Goliath. This became a political issue. This ad was released in 2014, and the Italian culture secretary at the time, Dario Franceschini, said "The image of David, armed, offends and infringes the law. We will take action against the American company so that it immediately withdraws its campaign.". This ad not only distorted an image of a culturally significant work but was, simply put, in bad taste.

Another issue arose when the Banca Popolare del Mezzogiorno launched a campaign in late 2013 using the image of the Teatro Massimo in Palermo without requesting permission. Sure, the bank wasn’t really besmirching the theatre and the mayor of Palermo’s main takeaway was that the theatre had become a positive symbol. However, this didn’t stop them from going to court, and the court recognized the monetary damage caused and fined the bank just under an eye-watering 5,000 euros. 

The increasing regularity of cases pertaining to the ICCHL poses an interesting question about the balance that ought to be struck by artists, designers and the like. As Dr Ramon Romano, a researcher at the Euro-Mediterranean Institute of Science and Technology in Palermo, with a list of very impressive qualifications on his CV, puts it, the “boundless nature of cultural heritage” leads to a revelation about copyright law. It is both a medicine and a poison, it both protects and preserves whilst also allowing for economic exploitation. This balance, or lack thereof is what is worrying about the recent spree of ICCHL cases – how does one prevent the monopolisation of cultural property which, by its nature, should be publicly accessible. And at what point should one, who cares about cultural heritage and copyright law, be up in arms over the exploitation over the Codice which, after all, was put in place to protect rather than enable monopolisation. 

In essence, JP (Gaultier, that is), has infringed upon a bizarre minefield of technicalities and grey areas. I wish him the best of luck, and if any of those reading (including all the major fashion designers that religiously read what I have to write) decide to use a classic piece of art for a project, please for the love of God avoid the Italian oeuvre.