The donation of works of art and the related economic rights

A recent ruling of the Court of Cagliari

The donation of a work of art, as well as its sale, does not imply the simultaneous transmission of the related economic rights from the donor to the donee. The confirmation comes from the Court of Cagliari that, on March 27, 2021, affirmed (or rather, reaffirmed, rejecting the appeal of the losing party) that the donation of a work of art – like any act of disposal – does not imply the transfer of economic rights, unless (of course) otherwise agreed.

The dispute, which arose in February 2020, involved Mrs. Maria Sofia Pisu, niece (and only heiress) of the Sardinian artist Maria Lai, passed away in 2013, and the Stazione dell’Arte Foundation, a contemporary art museum opened in 2006 and dedicated to the artist, from whom it received a donation of over one hundred works.

Mrs. Pisu sued the Foundation claiming an infringement – perpetrated through the distribution and marketing of books containing images of some of Maria Lai’s works – of her economic rights on the works donated by the artist, of which her niece (as her sole heiress) claimed to be the legitimate holder. On the other hand, the Foundation defended itself claiming to have acted lawfully since Maria Lai, through the said donation, did not intended to transfer only the physical property of their works, but also the related economic rights, “being clear that the donation of such works was part of, and strictly functional to, a project of promotion and enhancement of the artist’s work to which all the Foundation’s activities were institutionally and exclusively aimed”[1] and therefore this also included all the rights necessary to produce books, catalogs, studies, films and audiovisual works, conventions or exhibitions.

Mrs. Pisu’s request for an injunction, which had already been granted by the Court of Cagliari on January 19, 2021, was confirmed by the same judge who, on March 27, 2021, rejected the appeal promoted by the Stazione dell’Arte Foundation. The Court pointed out that a proper reading of Article 109 of the Italian Copyright Law, which states that “the disposal of one or more copies of the work does not imply, unless otherwise agreed, the transmission of exploitation rights”, requires the necessary existence of an express agreement regarding such rights, with the logical consequence that any systematic interpretation of the agreement that implicitly entails their transmission is not admissible.

Naturally, this is a pronouncement granted in the precautionary phase which, although unlikely, might not be confirmed in a potential judgment on the merits.

 

 

[1] Court of Cagliari (RG 1958/2020); order January 19, 2021