ITALY: An Introduction to Intellectual Property

Intellectual Property and Art Law: some intersections at the crossroads 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, which is famous for its rich cultural heritage (as of 2025, it had the most UNESCO World Heritage sites with 58 in total) 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 the Italian legal framework is the regulation of cultural property reproduction. Indeed, the reproduction of artworks in Italy is not only governed by copyright law, but also by laws protecting cultural heritage.

If an artwork is still under copyright protection, ie, during the lifetime of the author plus 70 years after their death, the copyright holder’s authorisation is sought for any commercial reproduction of the work, in line with the Italian Copyright Law (Protezione del diritto d'autore e di altri diritti connessi al suo esercizio) (Law No 633 of 1941). However, once a work falls outside the copyright protection period, its commercial reproduction may still require authorisation if the work is deemed cultural property under the Code of Cultural Heritage and Landscape (the "CCHL”) (Legislative Decree No 42 of 2004). 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 authorisation from the Italian Ministry of Culture or the relevant regional or local authorities under Article 108 of the 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. The 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, 20 April 2023 and 28 August 2023 No 2446) or Leonardo da Vinci’s Vitruvian man at the Galleria dell’Accademia in Venice (Court of Venice, 17 November 2022) without obtaining the necessary authorisation from the Ministry of Culture or paying the required fee.

AI-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 only grants rights to human creators. The EU Copyright Directive (2019/790) refers to authors as "natural persons" (recitals 72 and 74). However, in Italy, no specific legal provisions or precedent address AI-generated art, ie, art created by AI.

A recent ruling concerning a digital work created through software and used without authorisation 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 16 January 2023, No 1107). However, the Court granted protection to the digital work based on the existence of the creative act, emphasising 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 the US (Thaler v Perlmutter and recently reaffirmed by the US Copyright Office as well) or China (eg, Li Yunkai v Liu Yuanchun) where the court granted copyright to AI-generated works as it was proved that the software user had organised 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 honour.

Italian law grants artists perpetual rights to attribution and integrity, even after the work enters the public domain or its economic rights are transferred. The right to integrity allows artists to object to modifications of their works that could distort their original meaning or harm 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 (eg, NFTs) or unauthorised use in digital platforms often leads to artists losing control over their works and makes it 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, 15 January 2019 No 52442), exhibitions, or digital media which diverge from their intended meaning.

An example of the exercise of moral rights is when artists challenge the display of their work in public exhibitions. For example, 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 such as Lucio Fontana’s withdrawal of his Venice Biennale work in 1966 and Maurizio Cattelan’s removal of his La Nona Ora work at the 1997 Venice Biennale.