The Italian government is reportedly “up in arms” over an Illinois firearms manufacturer’s advertisement showing Michelangelo’s famous “David” sculpture holding a rifle — but if news reports are right, the Italian government is using the “wrong weapon” in the battle.
The international outrage stems from an advertisement created by ArmaLite, Inc. showing David holding an AR-50A1 (which retails for over $3,000) with the catchphrase: “AR50A1: A Work Of Art”. Reports state that Italy’s culture minister, Dario Franceschini, took his outrage public on Twitter, tweeting that: “The image of David, armed, offends and infringes the law.” He vows to “take action against the American company so that it immediately withdraws the campaign.”
According to the superintendent of the State Museums of Florence, Cristina Acidini, the copyright to David is owned by Italy and she has, reportedly, already sent a notice to ArmaLite advising them of Italy’s rights to David. However, copyright in the David expired long ago (after all, David was unveiled centuries ago in 1504). Accordingly, under U.S. law, so did so-called “moral” rights that would otherwise have offered protection.
“Droit moral” or “moral” rights provide protection for artistic integrity and prevent others from altering the works of artists, or taking the artist’s name off works, without the artist’s permission. Such rights were only added to the U.S. Copyright law in 1990 as part of the adherence by the U.S. to the Berne convention.
Article 6bis of the Berne Convention states that:
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where the protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death cease to be maintained.
Whereas some countries in Europe (most notably France) provide that “moral” rights exist in perpetuity (thus, a French court awarded damages in a case involving the works of Victor Hugo despite the fact that the claim was made 119 years after the death of Victor Hugo), under U.S. law, “droit moral” or “moral” rights only apply to works created after 1991, and only for the duration of the copyright in the works.
If Italy is going to have any hope of getting ArmaLite to back down, they will likely need to be much more creative applying the law — even if it is a “long shot”. For example, Italy could attempt to use U.S. trademark law in David’s slingshot to fire a claim under Section 43(a) of the Lanham Act at ArmaLight, namely, for running an ad causing a false association of their AR-50A1 rifle with the world renowned David sculpture. Artists (and owners of the artist’s rights) sometimes look to section 43(a) of the Lanham Act for protection, which the statute provides in two ways: Section 43(a)(1)(A) provides protection from confusion or deception as to the origin, sponsorship or approval of goods and Section 43(a)(1)(B) provides protection from misrepresentation in advertising or promotion of the nature, characteristics, qualities or geographic origin of goods, services or commercial activities.
Knowing the right law to rely upon in any given situation is very often the key to successful advocacy — it can make even a slingshot more effective than a rifle.
