Does selling a sculpture based on a copyrighted painting violate that painting's copyright?

Question

I am planning to sell a physical sculpture based on Michelangelo's Creation of Adam. There would be some additional features besides just the sculpture, but those are irrelevant for the purposes of this question. The painting, for those unfamiliar:

The sculpture would be 3d modeled and then 3d printed. To give a sense of what I'm talking about, here's a link to a 3d model that I found.

Unless I can license that particular model, my plan is to pay another artist to create a similar model that I would then have ownership of. But, here comes the problem:

According to this Wikipedia page, "The Holy See owns all copyrights in the works published under its name or created on its commission (art. 5)." Since this painting was commissioned by the Vatican for the Sistine Chapel, they own the copyright to it. So, I have several questions:

1. In general, if a painting is copyrighted, can a sculpture be created based on that painting without violating the painting's copyright?
2. If not, would the religious nature of the scene be a good legal defense? I.e. this sculpture was inspired by the story of God creating man (not copyrighted), rather than inspired by a specific painting of God creating man (copyrighted).
3. If I do somehow violate copyright, how likely is it that the Vatican would actually sue? How far does their jurisdiction extend?
4. If I commission another artist to create a sculpture based on the painting, could I be violating the copyright of the artist who has already created a sculpture based on the painting?

If it matters, I am based in the US, though I would ideally like to be able to sell outside of the US. Any advice would be appreciated. Thank you!

Answer 1

"The Holy See owns all copyrights in the works published under its name or created on its commission (art. 5)." Since this painting was commissioned by the Vatican for the Sistine Chapel, they own the copyright to it.

The first sentence just says the Vatican owns all copyrights that exist, it doesn't speak to whether any copyrights exist in the first place. Earlier in that article, it says "The law provides for copyright 70 years after the death of the author, or 70 years after publication for works with no named author." I don't know off-hand when Michelangelo died, but I'm pretty sure that it was more than 70 years ago. So if there is a copyright, it has long since expired, and who owns it is a moot point. The painting is well in the public domain.

If there were a valid copyright, a sculpture would be a derivative work and would require a license.

Answer 2

Within the united-states, in 1992, an artist who made a sculpture based on a photograph lost his case.

Art Rogers, a professional photographer, took a black-and-white photo of a man and a woman with their arms full of puppies. The photograph was simply entitled, Puppies, and was used on greeting cards and other generic merchandise.

Jeff Koons, an internationally known artist, found the picture on a postcard and wanted to make a sculpture based on the photograph for an art show on the theme of banality of everyday items. After removing the copyright label from the postcard, he gave it to his assistants with instructions on how to model the sculpture. He asked that as much detail be copied as possible, though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman.

....

The court found both "substantial similarity" and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying, a measure for evaluation. Thus the sculpture was found to be a copy of the work by Rogers.

But, as noted, the painting that you are basing the sculpture off of is pretty long outside of copyright.

Answer 3

italy

Adding another wrinkle to this situation, while it will not apply to this particular case if, indeed, Vatican City holds the copyright, ancient Italian works still have a sort of copyright expressed over them where covered by the Italian Cultural Heritage Code.

According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

In a 2022 case, the Gallerie dell’Accademia di Venezia took action against the German Ravensburger toy company regarding their use of the Vitruvian Man, as drawn by Leonardo da Vinci, for a puzzle, requiring a licensing fee. As far as I can tell, Ravensburger lost their case in Italy in 2022, but won their case in German court in 2024, and the matter is still not entirely settled.

Answer 4

1. In general, if a painting is copyrighted, can a sculpture be created based on that painting without violating the painting's copyright?

Copyright protects creation of "derivative works". SCD's answer contains a court decision that a sculpture based on a picture was a derivative work and infringed the picture's copyright.

2. If not, would the religious nature of the scene be a good legal defense? I.e. this sculpture was inspired by the story of God creating man (not copyrighted), rather than inspired by a specific painting of God creating man (copyrighted).

I doubt it. If the sculpture were actually based on the story, it would strain credulity if it looked too much like the painting.

For instance, the Bible story doesn't include anything about Adam and God pointing fingers at each other, that was almost certainly from Michelangeo's imagination. If the sculpture contains that element, it would be strong evidence that it wasn't an original creation based on the Bible.

3. If I do somehow violate copyright, how likely is it that the Vatican would actually sue? How far does their jurisdiction extend?

That likely depends on treaties between the Vatican and the US, or whichever country you sell the sculpture in.

Note also SCD's answer -- although there's no copyright on this particular painting, selling the sculpture based on it without Italy's authorization may violate that law on cultural heritage works. This is distinct from copyright violation.

4. If I commission another artist to create a sculpture based on the painting, could I be violating the copyright of the artist who has already created a sculpture based on the painting?

Only if they copy the first sculpture, not the painting.

If the sculptor truthfully never saw the sculpture, they can't have copied it. But if their scupture includes some unique elements that were introduced by the first sculptor, that would argue against independent creation.