Intellectual Property and Art Law: some intersections at the crossroad in Italy
The intersection between intellectual property (IP) and art law is a dynamic and complex area, especially as new technologies and shifting cultural priorities reshape the way art is created, distributed, and protected. In the realm of art, the application of copyright law often raises questions about how far this law should extend, and where exceptions should be made. Additionally, IP laws can sometimes conflict with principles enshrined in art law, such as the freedom to create, the public's right to access art, and the preservation of cultural heritage.
In Italy, famous for its rich cultural heritage (as of 2025, owning the most of UNESCO World Heritage sites, 58) several issues have emerged at the intersection between IP and Art Law. These issues are now gaining attention and prompting legal debate.
Reproduction of cultural property
One issue that is particularly unique to Italian legal framework is the regulation of cultural property reproduction. Indeed, the reproduction of artworks in Italy is governed not only by copyright law, but also by laws protecting cultural heritage.
If an artwork is still under copyright protection – i.e., during the lifetime of the author plus 70 years after his/her death – the copyright holder’s authorization is sought for any commercial reproduction of the work, as per Italian Copyright Law (Law No. 633/1941, titled "Protezione del diritto d'autore e di altri diritti connessi al suo esercizio"). However, once a work falls outside the copyright protection period, its commercial reproduction may still require authorization if the work is deemed cultural property under the Code of Cultural Heritage and Landscape (Legislative Decree No. 42/2004, “CCHL”). Works deemed cultural property under the CCHL due to their inherent cultural value are subject to a special regulatory framework for import, export, sale, transport, and reproduction, whether the owners are private individuals, businesses, or public entities.
For reproduction of cultural goods, users must obtain authorization from the Italian Ministry of Culture or the relevant regional or local authorities, as outlined in Article 108 CHCL, which also outlines different fees based on the type of reproduction.
This unique legal framework, which has no equivalent in other European countries, has led to several rulings. Italian Courts have condemned companies which had used images of cultural property works for their commercial activity, such as Michelangelo’s David at the Galleria dell’Accademia in Florence ( Court of Florence, April 20, 2023 and August 28, 2023 no. 2446) or Leonardo da Vinci’s Vitruvian man at the Galleria dell’Accademia in Venice (Court of Venice, November 17, 2022) without obtaining the necessary authorization from Ministry of Culture or paying the required fee.
Generated Art: A Challenge to the Concept of Authorship
The rise of AI-generated art has sparked global debates about whether such works can be protected under copyright law and, if so, who qualifies as the author. European copyright law generally grants rights only to human creators: the EU Copyright Directive (2019/790) refers to authors as "natural persons" (recitals 72 and 74). In Italy, however, no specific legal provisions or precedent address AI-generated art, i.e. to art created by artificial intelligence.
A recent ruling concerning a digital work created through software and used without authorization for stage scenery at a singing festival did not specifically address the copyright protectability of AI-generated art without any human intervention (Italian Supreme Court January 16, 2023, no. 1107). However, the Court granted protection to the digital work based on the existence of the creative act, emphasizing the necessary “authorial personality” for protection. Conversely, following this logic, works created entirely by AI systems without human input, would likely be excluded from protection under Italian copyright law. This approach aligns with rulings in other jurisdictions, such as U.S. (Thaler v. Perlmutter, and recently reaffirmed by the U.S. Copyright Office as well) or China (e.g., Li Yunkai v. Liu Yuanchun) where the court granted copyright to AI-generated works as it was proved that software user had organized and adapted the outputs to reflect their own aesthetic choices.
Moral rights
Another distinctive feature of Italian art law is the protection of moral rights, which is particularly robust. Moral rights are a set of rights that ensure that the author's personal connection to their work is respected. These rights allow the artist to protect their name and reputation, as well as to prevent alterations or uses of the work that may harm their artistic honor.
Italian law grants artists perpetual rights to attribution and integrity, even after the work enters the public domain of its economic rights are transferred. The right to integrity allows artists to object modifications of their works that could distort their original meaning or damage harming their reputation. This protection extends to some artist’s heirs after their death. However, with the rise of digital art, enforcing moral rights has become increasingly challenging. Digital reproduction (e.g., NFTs) or unauthorized use in digital platforms often lead to artists losing control over their works and makes it quite impossible to exercise one’s moral rights.
Another controversial issue tied to moral rights is whether artists should have the right to prevent certain uses of their works, particularly in commercial products (as illustrated by the famous Banksy case, Court of Milan, January 15, 2019 no. 52442), exhibitions, or digital media that diverge their intended message.
An example of the exercise of moral rights is when artists challenge the display of their work in public exhibition. For instance, a recent case involved Nanni Balestrini, whose archive requested the removal of his work from the current exhibition “The time of Futurism” in Rome.
Historically, several artists have invoked their moral rights to withdraw works from exhibitions for artistic, political and personal reasons – examples include Lucio Fontana’s withdrawal of a work in 1966 Venice Biennale, and Maurizio Cattelan’s removal of his work La Nona Ora at the 1997 Venice Biennale.
Article published in Chambers and Partners via the following link: Chambers Global 2025.