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fashionbyf · 1 year ago

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Can the aura of a cultural property affect fashion’s IP? What Ferragamo’s Fall/Winter ‘23 fashion campaign with the Uffizi might tell us…

As anyone who reads my Fashion by Felicia musings and other scholarship knows, I’m a bit Ferragamo obsessed. I can’t really pinpoint where my fascination with this Italian heritage brand started. I’m sure it’s lodged deep in my six year old self. It's somewhere in between walking around Florence to Gilli for a hot chocolate and spotting the windows of Palazzo Spini Feroni and observing aristocratic Florentine ladies of a certain age (immortalized in a Milanese version on sciuraglam) wearing their Vara shoes with a slightly adolescent bow that seemed to me to communicate that a six year old Italian-American girl from the Midwest now relocated to a new Renaissance context could really grow up to be that much of an elegant, sophisticated signora. But, no matter where this obsession began, suffice it to say that when I started to explore the links between fashion heritage and art history in my undergraduate studies, the Ferragamo Creations line and the Ferragamo Museum seemed to me the best place to start. Fast forward a decade, and the richness of the Ferragamo example, and its embrace of the multiple facets of its founder’s life and talent as part of its brand heritage, is still offering multi-faceted examples and case studies, from expired patents and exhibitions to gold sandals and Rainbow sandals reimagined from the archive and, now, a Fall/Winter ‘23 campaign at another treasured heritage space in Florence, the Uffizi.

Now, when you saw the announcement of Ferragamo’s campaign, you might have thought (like Cher in Moonstruck)- wait a minute! Didn’t the Uffizi just object to Gaultier’s use of The Birth of Venus? Wasn’t there some outrage at the idea of Chiara Ferragni posing in the Uffizi galleries just a few years ago? Why is Ferragamo a “yes” now but Gaultier was a “no”? From a purely technical, legal point of view, there is an answer.

The Uffizi is classified as a special autonomous museum which, while still a public cultural institution under the purview of the Italian Ministry of Culture, makes specific choices as part of its autonomy and mission to protect, manage, and enhance the cultural properties it holds in its collection. You can read more about the reform of Italian museums in 2014, the designation of certain museums as autonomous institutions, and their relationship to the Ministry of Culture’s General Directorate for Museums in Italy here. Part of the protection and enhancement (or valorization) of the cultural properties in the Uffizi collection includes preserving the tangible painting you see when you visit the Uffizi. It also includes deciding how to best use the intangible image of the painting. You also might think of this intangible image of the painting as the tangible composition that, thanks to photography and our iPhones, has become decidedly intangible. In other words, part of the Uffizi’s mandate includes managing the cultural interest that we attach to a painting that is a cultural property, like an oil on canvas by Giovanni Bellini (see a Ferragamo model in front of it here). This management includes protecting the very existence of the tangible painting, and also being sure that painting is properly valorized- that access, enjoyment, and education related to the unique cultural interest the painting has for us is properly supported and communicated.

Reproductions of cultural properties are part of this valorization conversation. Under Articles 107 and 108 of the Italian Code of Cultural Heritage Law, the Uffizi and the Ministry are allowed to authorize reproductions of the cultural properties in the Uffizi’s collection that are used for commercial purposes. Carved out of this “authorization” are uses related to freedom of expression. No need to worry if you are a considerate, mature American tourist just taking a picture for your personal Instagram (avoid carving love notes on the Colosseum!). Of course, in our personal branding times, what counts as commercial and non-commercial is a spectrum and not a bright line. What if you use your Instagram to promote tours you give or other creative projects, and not just as a travel diary for family and friends? That’s a current hot button issue. Suffice it to say that, for many Italian museums and by extension the Ministry of Culture, commercial use is an important weight on the scale in favor of authorization and, depending on the particular use, the payment of a fee. Many of the latest cases finding that commercial uses of images of cultural properties required authorization and the payment of a fee lean on the concept of public fruition as a justification. The museum, the argument goes, is entrusted with assuring a “qualified and complete process of knowledge of an object, of a reality that becomes a part and the heritage of the single and collective culture…” (Tribunale - Firenze, 11/04/2022, Rg. 1910-2022). The authorization process is the main vehicle for this assurance.

You might also think of this assurance as a quality control of the work of art/cultural property’s aura in an age of mechanical (and digital) reproduction, as so expertly introduced into our lexicon by Walter Benjamin. As John Henry Merryman said, we care about a cultural property’s ability to tell us “the truth”, to be authentic and to testify- that is essentially the essence of our public interest in cultural property and, more broadly, cultural heritage. The regulation of images of works of art that qualify as cultural properties under the law is essentially a control over the stories that cultural properties tell. Cultural institutions have an interest, in light of their mission, in supporting some stories over others. Of course, we can debate which stories and for which stakeholders and Merryman’s own conception of “truth”, especially in light of the importance of diversity for museum audiences, and the very relevance of certain museum missions today- here’s looking at you British Museum. The question of what that support looks like, and how far cultural dialogue should be stifled in the name of truth and authenticity, is a foundational one. Of course, one need only look at the Uffizi’s brilliant TikTok channel to see how open that particular cultural institution is to cultural dialogue, translating their cultural properties to new contexts, and embracing Gen Z for the benefit of culture.

So, short answer? Ferragamo asked for permission to use images of the cultural properties in the campaign and followed Italian cultural heritage law. Ferragamo’s proposed use was deemed in line with preserving and valorizing the cultural properties that would be featured in the campaign by the Uffizi. Gaultier seems to not have even asked for authorization, either as a first matter or after a cease and desist letter from the Uffizi. Hence the characterization of the use of the image of The Birth of Venus in a capsule Gaultier collection as illicit.

But assuring public fruition and the valorization of cultural property doesn’t always require giving a museum the right to check the use of an image of a painting and/or control its aura. Other museums, and other jurisdictions, take different pathways. This is part of the reason why Italy’s regulation of the reproductions of cultural properties has seemed to be like a mutant copyright to so many. In the United States, for example, we relegate images of paintings that have aged out of copyright law to a robust public domain. And this rule, following some contested museum and art database policies, has over time extended to many cultural institutions. A case in point: The Metropolitan Museum of Art and other museums embrace Open Access policies that allow commercial uses of the images of paintings in their collections. Of course, this doesn’t stop The Metropolitan Museum of Art from partnering with Pacsun- placing images of paintings on loungewear sold in their giftshop, partnering with creative teams to re-interpret the works in their collections in new designs, and leveraging their “THE MET” Logo to create consumer recognition on the fashion and retail market. And it is here that a cross-pollination of sorts begins to emerge between cultural heritage law, IP law (and by that I specifically refer to copyright law and trademark law), and their negative spaces. There is already an argument to be made under Italian cultural property law that some uses of images of cultural properties may be so creative that they are effectively kicked out of a cultural property licensing regime (for more on that argument see here and here). And the same creativity that removes certain uses from a cultural property licensing regime might be enough, in certain circumstances, for the spark of originality required to enter the copyright regime. But, to quote the great Whitney, how will we know? Is there a threshold for creativity and originality in fashion when fashion builds on cultural property and its aura?

In an insightful recently published article, Intellectual Property and the Manufacture of Aura, Bechtold and Sprigman coin a useful phrase with which to think about this question – “auratic narrative.” Auratic narratives are essentially a product of law, marketing, social norms, communities, and businesses and succeed where there are multiples. We might think of them as “invented heritage” (p. 348) but also as a storytelling that builds on facts and adds a healthy dose of mythmaking, creating brand heritage. Bechtold and Sprigman identify how auratic narratives may highlight a connection to an author (p. 306) (like Salvatore Ferragamo for Salvatore Ferragamo the brand), a place-narrative (p. 324) (like Florence, Italy for Salvatore Ferragamo the brand), and even originality narratives that focus on provenance (p. 330) (like blockchain mechanisms or an NFT with a Ferragamo sneaker that traces one of many shoes back to the brand). At times copyright law and trademark law (p. 323-324) may recognize auratic narratives. This has especially been evident in copyright law when certain jurisdictions have implemented “museum tests” (p. 310) or even deployed the use of “iconic” (as in the Moon Boots case in Italy, see p. 315 and here), connecting designs to specific authors and moments in history. In this sense, then, cultural strategies (p. 312) that involve cultural properties and partnerships with cultural institutions can be a key move for fashion brands and their designs. These strategies and partnerships create auratic narratives that buttress originality, support secondary meaning, or, at the very least, create a marketing campaign that makes a product unique and precious, the authentic original even if defined by copies.

And this brings us to the Fall/Winter ‘23 Ferragamo campaign. Photographed in front of works of art in the Uffizi collection, Maximilian Davis’ designs for Ferragamo are presented as indicative of a “New Renaissance.” With reference to the collaboration between the Uffizi, The Italian Ministry of Culture, and Ferragamo, you might have noted the credit “By permission of the Ministry of Culture- Gallerie degli Uffizi” as you scrolled through the Instagram captions. In Davis’ words, “The Renaissance is hardwired into Florence, and Florence is hardwired into Ferragamo. At this time of a new beginning at the house, it made perfect sense to reclaim the cradle of the Renaissance as our spiritual home, and to harness the deep, artistic spirit of this city to showcase the new collection.” Far from just placing models dressed in Ferragamo in front of works in the Uffizi galleries and its behind-the-scenes areas, some models seem to have been digitally placed inside the paintings, especially Francesco Granacci’s tempera on wood and Giovanni Bellini’s oil on canvas. Reclaiming the Renaissance includes painting Ferragamo in as a central character of these Renaissance compositions. In essence, laying claim to the aura of these paintings as part of Ferragamo’s own auratic narrative. Will adding in Renaissance layers to Ferragamo’s designs make us recognize Ferragamo’s designs as more Florentine than other luxury brands? Will this Florentine connection increase Ferragamo’s Made in Italy value on the market and, perhaps, make these 2023 designs more impactful in the history of design, so as to render them iconic or, in the future, indicative of a historically important “fus[ion] of beauty and innovation”? Time will tell but, as long as there is an aura for cultural property, and museums that participate in fashion’s origin stories, there may be an auratic narrative to buttress fashion’s IP rights.

Additional References

http://musei.beniculturali.it/wp-content/uploads/2018/04/Allegato_I-Livelli-uniformi-di-qualit%C3%A0-per-i-musei_English.pdf

http://musei.beniculturali.it/notizie/notifiche/sistema-museale-nazionale-pubblicato-il-decreto

Le Gallerie degli Uffizi initiatives between cultural heritage and copyright law, Presentation by Avv. Serena De Laurentiis, ALES S.p.A. and Gallerie degli Uffizi, June 2023

Lorenzo Casini, The Public/Private Dialectic in the Valorization of Cultural Heritage (forthcoming in The Italian Law of Cultural Heritage: A Dialogue with the United States, conference proceedings, Florence, Italy, June 2022)

Lorenzo Casini (2018) The long and winding road to the establishment of state-museums in Italy, Museum Management and Curatorship, 33:6, 546-554, DOI: 10.1080/09647775.2018.1537616

John Henry Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339 (1989)

Felicia Caponigri, Images of “Italian” Cultural Properties: Some Thoughts on the Italian Code of Cultural Heritage Law’s Articles 107 and 108 for an American Audience (forthcoming, The Italian Law of Cultural Heritage: A Dialogue with the United States, conference proceedings, Florence, Italy, June 2022)

Heymann, Laura A., Dialogues of Authenticity (July 29, 2013). 67 Stud. L. Pol. & Soc'y 25 (2015), William & Mary Law School Research Paper No. 09-247, Available at SSRN: https://ssrn.com/abstract=2302696

Images

https://www.ferragamo.com/shop/us/en

#salvatore ferragamo #cultural heritage law #IP law #fashion law #botticelli #cultural property #pac sun #the metropolitan museum of art #Made in Italy #aura #Walter Benjamin #Renaissance #New Renaissance #Copyright law #Trademark Law #auratic narrative

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