A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression

Curators worry the marble statue’s religious and political significance is being diminished.

Michelangelo’s David has been a towering figure in Italian culture since its completion in 1504. But in the era of the quick buck, curators worry the marble statue’s religious and political significance is being diminished by the thousands of refrigerator magnets and other souvenirs sold around Florence focusing on David’s genitalia.

The Galleria dell’Accademia’s director, Cecilie Hollberg, has positioned herself as David’s defender since her arrival at the museum in 2015, taking swift aim at those profiteering from his image, often in ways she finds “debasing”.

In that way, she is a bit of a David herself against the Goliath of unfettered capitalism with its army of street vendors and souvenir shop operators hawking aprons of the statue’s nude figure, T-shirts of it engaged in obscene gestures, and ubiquitous figurines, often in pop-art neon.

At Hollberg’s behest, the state’s attorney office in Florence has launched a series of court cases invoking Italy’s landmark cultural heritage code, which protects artistic treasures from disparaging and unauthorised commercial use. The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said.

“There was great joy throughout all the world for this truly unique victory that we managed to achieve, and questions and queries from all over about how we did it, to ask advice on how to move,” she said.

Legal action has followed to protect masterpieces at other museums, not without debate, including Leonardo’s Vitruvian Man, Donatello’s David and Botticelli’s Birth of Venus.

Michaelangelo's David was commissioned in 1501 and completed in 1504. The sculpture resides in the National Museum of Florence, Italy. Photo / Supplied

The decisions challenge a widely held practice that intellectual property rights are protected for a specified period before entering the public domain — the artist’s lifetime plus 70 years, according to the Berne Convention signed by more than 180 countries including Italy.

More broadly, the decisions raise the question of whether institutions should be the arbiters of taste, and to what extent freedom of expression is being limited.

“It raises not just legal issues, but also philosophical issues. What does cultural patrimony mean? How much of a stranglehold do you want to give institutions over ideas and images that are in the public domain?” said Thomas C. Danziger, an art market lawyer based in New York.

He pointed to Andy Warhol’s famous series inspired by Leonardo’s Last Supper. “Are you going to prevent artists like Warhol from creating what is a derivative work?” Danziger asked. “Many people would view this as a land grab by the Italian courts to control and monetise artworks in the public domain that were never intended to be charged for.”

Italy’s cultural code is unusual in its scope, essentially extending in perpetuity the author’s copyright to the museum or institution that owns it. The Vatican has similar legislative protections on its masterpieces, and seeks remedies through its court system for any unauthorised reproduction, including for commercial use and for damaging the dignity of the work, a spokesman said.

Elsewhere in Europe, Greece has a similar law, adopted in 2020, that requires a permit to use images of historic sites or artefacts for commercial use, and forbids the use of images that “alter” or “offend” the monuments in any way.

A souvenir bag on sale in a Florence shop depicts David blowing a bubblegum. Photo / AP

France’s Louvre museum, home to some oft-replicated masterpieces like the Mona Lisa and Venus de Milo, notes that its collection dates mostly from before 1848, and puts it in the public domain under French law.

Court cases have debated whether Italy’s law violates a 2019 European Union directive stating any artwork no longer protected by copyright falls into the public domain, meaning “everybody should be free to make, use and share copies of that work”.

The EU Commission has not addressed the issue, but a spokesman said it was checking “conformity of the national laws implementing the copyright directive” and would look at whether Italy’s cultural heritage code interferes with its application.

Hollberg won her first case against ticket scalpers using David’s image to sell marked-up entrance packages outside the Accademia’s doors. She also has targeted GQ Italia for imposing a model’s face on David’s body, and luxury fashion brand Longchamp’s cheeky Florence edition of its trademark Le Pliage bag featuring David’s more intimate details.

Longchamp noted the depiction was “not without irony” and said the bag was “an opportunity to express with amused lightness the creative force that has always animated this wonderful city”.

No matter how many lawsuits Hollberg has initiated — she won’t say how many — the proliferation of David likenesses continues.

“I am sorry that there is so much ignorance and so little respect in the use of a work that for centuries has been praised for its beauty, for its purity, for its meanings, its symbols, to make products in bad taste, out of plastic,” Hollberg said.

Based on Hollberg’s success and fortified by improved search engine technology, the private entity that is custodian of Florence’s landmark cathedral has started going after commercial enterprises using the famed dome for unauthorised, and sometimes denigrating, purposes — including men’s and women’s underwear.

So far, cease-and-desist letters have been enough to win compliance without turning to the courts, adding an extra half a million euros ($541,600) a year to revenues topping €30 million ($32 million), said Luca Bagnoli, president of the Opera di Santa Maria del Fiore.

A vendor sells souvenirs of Michelangelo's 16th-century statue of David at a kiosk in downtown Florence, Italy. Photo / AP

“We are generally in favour of the freedom of artistic expression,’’ Bagnoli said. “When it comes to reinterpreted copies, it becomes a little more difficult to understand where artistic freedom ends and our image rights begin.”

Italy’s cultural heritage code in its present form has been on the books since 2004, and while Hollberg’s cases were not the first, they have represented an acceleration, experts said.

The jurisprudence is still being tested. A court in Venice ordered Germany’s Ravensburger jigsaw puzzle maker to stop using the image of Vitruvian Man in the first case to involve a company outside Italy. The ruling implicitly rejected Ravensburger’s argument that the law was incompatible with the EU directive on copyright, lawyers said.

Experts say the aggressive stance could backfire, discouraging the licensing of Italy’s artworks, a source of revenue, while also limiting the reproduction of masterpieces that serve as cultural ambassadors.

“There is a risk for Italy, because you can select a work of art that is not covered by this legislation,’’ said Vittorio Cerulli Irelli, an intellectual property lawyer at Trevisan & Cuonzo in Rome. “In many instances, it is the same for you to use Leonardo’s painting which is in the UK, or Leonardo’s painting which is in Italy. You just go for the easiest choice.”