OLG Cologne on the copyright protection of applied art

Urn with stag - protected by copyright? The OLG Cologne answered this question in the affirmative. An urn is protected by copyright as a work of applied art.

The art object urn

There are urns of all kinds – they differ in terms of material, pattern, embossing or motifs. Nevertheless, the question of whether an urn should be regarded as an object of art, which even enjoys legal protection, is probably rather remote for the majority of people.

Reasons for the decision of the OLG Cologne

However, the Cologne Higher Regional Court ruled last year that an urn decorated with a stag should be protected by copyright as a work of applied art. In its ruling of April 2, 2014, the Higher Regional Court confirmed the lower court. It ruled that the urn with the stag motif could be subsumed under the requirements of Section 2 II UrhG. It is a “personal intellectual creation”. This is to be understood as an (artistic) achievement which, due to its character, can be seen as so aesthetic that it can be identified as an object of art. In the present case, a mere compilation of previously known motifs is excluded. This is assessed from the perspective of a circle that is reasonably familiar with art appreciation.

Dispute over copy of urn motifs

How did this decision come about? The case involved a dispute between two companies that each sold urns. After the plaintiff noticed that the defendant was increasingly placing copies of its urns on the market, it took action and turned to the court. Two urns were the subject of the lawsuit – one with a deer motif and one with a summit cross.

Appeal proceedings: “Hirschurne” protected by copyright!

As the judges did not grant protectability to the urn with the “summit cross” motif at first instance, the appeal proceedings only concerned the urn with the deer motif. The competent judges argued that the plaintiff’s urn had been processed. The defendant had therefore used the deer urn as a template to manufacture a similar product. It was determined that the defendant could not be said to have made a personal creative contribution, as the urns were too similar in their overall impression. In addition to the color tones, the motif of the deer, the landscape and the sky were almost identical.

Counterarguments of the defendant unsuccessful

The judges were not convinced by the defendant’s arguments. The defendant cited differences in the design of the posture of the deer, the landscape and the light sources on the urn. Nevertheless, according to the judges, the overall impression should be taken into account, so that the differences in detail could not lead to an overturning of the decision.

Culpable action by the defendant

The judges considered the defendant’s conduct to be culpable. They did not set any particularly high requirements for this point of examination. It was sufficient that the “infringer (the defendant) had clearly acted in the border area of what is legally permissible, in which he must consider an assessment of the legal permissibility of his conduct that differs from his own assessment“. In their examination, the judges were guided by the standards of the “Geburtstagszug” decision made by the BGH in 2013 (judgment of November 13, 2013, case reference: I ZR 143/12 ).

Caution even with “unusual art objects” at first glance

So you can see that it is not only in the area of “common” art genres such as photography or canvas paintings that you need to be aware of possible copyright protection measures. Caution is also required in areas of life where art may not be the first thing on your mind.

Sources:

Announcement of the Institute for Copyright and Media Law from 07.04.2015

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