A well-known design agency created the design for the beer containers of the now well-known beer brand “5.0 Original” and had reserved the right to transfer the rights to third parties in advance of the contract. If the rights of use were sold on to a third party, the agency was then entitled to a reservation of consent.
Nevertheless, the client sold the rights of use to companies outside the group of companies without the agency’s consent. The design agency felt that this infringed its copyrights and asserted its claims in court.
Required level of creativity even with a simple design
The decisive question was whether the container was a protectable work at all.
The Regional Court of Hamburg considered the design in question to have the required level of creativity (judgment of 07.07.2016, ref.: 310 O 212/14). Despite or precisely because of its simplicity and the purism of the design, it stands out from the conventional designs of other containers. In this respect, a beer container is a work of applied art within the meaning of Section 2 para. 1 no. 4, para. 2 UrhG.
In particular, the LG Hamburg referred to the simple and clear font, the limitation to two colors without characters, the horizontal design of the lettering and the division into three “blocks/fields”. Particularly in relation to the common designs of beer bottles or cans, which are designed with coats of arms, place names or shiny gold paper, the design of “5.0 Original” has a “clear, reduced appearance” that deserves copyright protection.
It was therefore not necessary to refer to the BGH’s Geburtstagszug decision (judgment of 13.11.2013, case reference: I ZR 143/12), which was also mentioned in the judgment. In the case decided there, the BGH considered it sufficient for the assumption of the level of creation if, in the opinion of the circles receptive to art, an “artistic” achievement can be spoken of. The BGH therefore set the hurdle for obtaining protection very low.
In case of doubt, the right of use remains with the employer
Furthermore, the Hamburg Regional Court had to deal with the problems that can arise in an employment relationship in the case of division of labor and cooperation.
According to the judges, in case of doubt it should be assumed that the rights of use of the employed designers are transferred to the employer:
“In the case of designers employed by a product design company, there can be no doubt – unless there are specific indications to the contrary, as in the present case – that all conceivable rights of use have been transferred to the employer, at least impliedly, with the transfer of design services by the employed designers, even without express agreements.”
Anything else would be unrealistic in this respect. The provisions of §§ 31 ff. UrhG apply via § 43 UrhG. Accordingly, the agency is also the sole owner of the rights of use.
Idea or reference alone does not justify copyright protection
The defendant beer publishers argued that the idea for the design and the labeling came from them and that they had provided the design agency with essential specifications. In this respect, however, the LG Hamburg clarified that copyright law does not protect all results of individual intellectual activity, but only works within the meaning of Section 2 UrhG. Essential specifications are not sufficient.
In its decision, the court thus makes it unmistakably clear that the affirmation of a work of applied art does not only require extensive, creative embellishment, but on the contrary, it is precisely simplicity that can be convincing. True to the motto “the less the more”, even a minimal design can lead to full copyright protection.