By: Elizabeth Tirrill, Digital Editor
French designer Jean Paul Gaultier recently unveiled a new ready-to-wear capsule collection titled “Le Musée,” featuring depictions of famous art on Gaultier’s clothing designs. The pieces in the collection include clothing that features the likeness of Botticelli’s famous “The Birth of Venus” painting, along with other renowned works. This collection comes a few years after the luxury fashion house Louis Vuitton collaborated with artist Jeffrey Koonz to create leather goods that featured the works of Van Gogh and Da Vinci. However, the legendary Uffizi Gallery in Florence, Italy may potentially sue “Le Musée,” and Jean Paul Gaultier for the use of Botticelli’s work.
After discovering Gaultier’s designs with “The Birth of Venus,” the Gallery sent a cease-and-desist letter, and another letter later demanding that the designer and artist either come to an authorization agreement or all production of the clothing cease. Botticelli’s Renaissance work is undoubtedly within the public domain. Italian copyright protection, much like American copyright protection, extends through the life of the author, plus 70 years. Generally, a work entering the public domain is a defense against an assertion of copyright infringement. Once the copyright term ends, others may use or copy the work without a license or attribution.
Gaultier is at risk for liability, despite using a work in the public domain. This is because Italy adopted the Code of Cultural Heritage and Landscape in 2004. The code requires that works that have cultural significance cannot be used for commercial benefit without specific authorization and the payment of a fee. Here, “The Birth of Venus” is an iconic work that fits under the law’s description of something that has cultural significance. There are exceptions to this law, such as use for education or scientific purposes. In fact, a legal scholar suggested that Gaultier could fit into an exception under the code if he can successfully argue that his works are “creative re-elaborations” of Botticelli’s work.
As of October 10, 2022, Uffizi claimed Gaultier “substantially ignored” its demands to cease using the design. Although Gaultier’s website no longer features the collection, there are still some retailers where the pieces may be purchased. Should Gaultier fail to meet Uffizi’s demands, this issue will proceed to court.
13:19. Defenses commonly arising in copyright litigation—Public domain, Copyright Litigation Handbook § 13:19 (2d ed.)