Last week, Fendi sent a cease and desist letter to the organizing committee of Rome Gay Pride for featuring its new headquarters to promote Rome’s upcoming Pride parade. The Italian design house, which is a subsidiary of Louis Vuitton’s parent company, LVMH, points out in its letter that since last year, its headquarters have been located in the Palazzo della Civiltà Italiana (also known as Colosseo Quadrato, Square Colosseum). The house further alleges that after the restoration of the building – which was sponsored by Fendi – and the transfer of its registered office and headquarters there, the image of Fendi is indissolubly linked to the image of the building. And in case that’s not enough, Fendi also declared that it is now the sole licensee of the image of the building.
Fendi alleged in its letter that the Gay Pride committee used images of the building in the promotional campaign for the Rome Gay Pride Parade that took place this weekend without its authorization. The design house demanded that the Committee immediately cease any and all use of the promotional materials depicting the building, remove the images from their website and social networks accounts, and destroy all other promotional materials bearing the image. Fendi additionally threatened to sue the Committee to recover damages “in the absence of action” on the Committee’s behalf.
To Fendi’s demands, the Committee publicly responded, stating that it had no intention of removing the promotional material, and suggesting that Fendi’s concerns arise less from a legal perspective and are more specifically based on not wanting its image associated with the LGBT movement. (This is quite an interesting point considering that Fendi’s creative director, Karl Lagerfeld, is gay). On the heels of the Committee’s statement, Fendi and the Committee appear to have come to a resolution, as they issued a joint press release on Friday stating that the letter was little more than a misunderstanding and the use of pictures of the Palazzo is fully authorized. Fendi also declared in the press release that it has always promoted professional, cultural and gender diversity and has never discriminated on the basis of gender identity or sexual orientation, race, color, sex, religion, political opinion, nationality, social origin, ethnicity, disability, age, marital status or other personal status. Fendi added that it has always been the brand’s goal to create and maintain a heterogeneous community that respects diversity.
Unsurprisingly, the international press has been quick to call out Fendi’s behavior. Writing for the Guardian, Stephanie Kirchgaessner called Fendi’s legal threats and subsequent behavior “an embarrassing U-turn.” And noted that “the row was reminiscent of a fight between LGBT rights’ supporters and another major fashion house, Dolce & Gabbana, after the designers Stefano Dolce and Domenico Gabbana expressed opposition to gay couples having children.”
THE LEGALITY OF THE SITUATION
In terms of the legal basis of the letter, Fendi assumes to be the licensee of the image of the Palazzo della Cultura, and claims that it must authorize the use of photos of the building before the use of such photos is permitted. Such claims on their face seem to be based of the European doctrine of “freedom of panorama.” The freedom of panorama is an exception to the copyright laws of various jurisdictions. It permits the taking photographs and video footage of buildings, sculptures and other art works (including street art), which are permanently located in a public place, without infringing on any copyright that may otherwise subsist in such works.
While some European countries, such as Germany, have an explicit exception for freedom of panorama, others do not provide any kind of exemption. So, you could be forced to pay a fee for taking and publishing a photo of the Little Mermaid Statue in Copenhagen or in Sweden, you must receive consent from the creator of any work located in a public place before publishing a photo of it on the web.
In Italy, the legal framework is even more complex. While it is largely understood that Italy does not observe a freedom of panorama, the Italian law for the Protection of Copyright and Neighboring Rights provides that works of the mind having a creative character and belonging to literature, music, figurative arts, architecture, theatre or cinematography, are protected. An author has the exclusive right to reproduce his work in any form, which includes photography and any other process of reproduction. There is a tiny exemption to this right – similar to the doctrine of fair use – which allows for the reproduction of fragments or parts of a work and their communication to the public for the purpose of criticism or discussion. Such an exemption permits the reproduction through internet of low resolution and degraded images for teaching and or scientific non-profit purpose, which includes photos of art works in public spaces.
Moreover, Italian Cultural Heritage legislation provides that government bodies may permit the reproduction of cultural properties after the payment of a concession fee established by the authority in whose care the property at issue is committed. Still another small exemption is provided, which holds that no fee is required for reproductions requested by private individuals for personal use or for purposes of study, or by public bodies for purposes of enhancement. So, no fear when you go in Italy to take a picture of the Colosseum for your own use. However, it is not quite that simple. When you then upload the picture on Facebook, you agree to their terms of service authorizing Facebook to use the uploaded contents for commercial purposes, which may subject you to legal ramifications.
It should come as little surprise that in Italy, every municipality has its own rules: See for example the Photographic Authorization Request to submit in Rome or the specific rules provided by the city of Reggio Emilia related to the works of architecture designed by Santiago Calatrava. With this in mind, it is difficult to say whether there is actually a freedom of panorama, upon which Fendi can rely in connection with the Palazzo della Cultura. What we can say for sure, though, is that Fendi’s letter to the Gay Pride Committee has resulted in a marketing and PR fail, which could prove damaging to its brand.
PAOLO CECCHI is an Italian attorney at law who works in Italy in various practice areas: corporation law, securities and capital markets law, intellectual property, and technology and entertainment law. He recently started the blog Street Art & Law, where he analyzes general issues related to copyright, fair competition and right of publicity.