On July 12, 2016, the Higher Regional Court of Frankfurt am Main ruled (case reference: 11 U 133/15) that an infringement of the intellectual substance of a work of art already exists if the work of art is placed in a different local and factual context.
Insofar as a work is conceived and constructed in connection with the exhibition venue, the intellectual creation of the work worthy of protection lies in this context in particular. The change of location then always leads to a change in the overall impression created by the author and thus simultaneously to a copyright infringement.
Artwork is related to the place of installation
In 2005, the 45-metre-high office tower was converted into a student residence by Henry Nold’s heirs in Darmstadt. Nold himself had a seven-metre-wide sculpture by the sculptor “Georg-Friedrich Wolf” installed on the roof of the building, symbolizing a crop circle system. The sculpture was installed in such a way that the morning sun was reflected onto the main traffic axis of the city of Darmstadt.
Changing the location changes the overall impression of the work
After the building was sold in 2012, the new owners removed the sculpture, which was still owned by Nold. It was dismantled and stored in the basement in order to erect a logo for the restaurant now located on the roof. In addition, further mobile phone antennas were to be installed on the roof. Furthermore, the esoteric crop circle sculpture was not compatible with the evangelical faith of the managing director of the real estate company that bought the building in 2012.
The owner, Nold, took legal action against the dismantling and tried to have the sculpture reinstalled on the roof.
Changing the location violates the prohibition of changes under Section 14 UrhG
The Higher Regional Court of Frankfurt am Main dismissed the first-instance judgment of the Regional Court of Frankfurt (judgment of 07.10.2015 – 6 O 392/14) and granted Nold’s request. The dismantling of the work from the roof was a violation of the prohibition of alteration under Section 14 UrhG.
“The author has the right to prohibit any distortion or other impairment of his work that is likely to jeopardize his legitimate intellectual or personal interests in the work.”
According to the judgment of the Higher Regional Court of Frankfurt am Main, there was no change to the physical substance of the sculpture. However, Section 14 UrhG is not only to be understood as the alteration of the material substance, but also the transformation of the overall mental and aesthetic impression.
In the case of a work that was designed in the specific context of the installation site, a change in the overall impression already lies in the change of location.
Exhibition venue is part of the factory
The work derives its meaning exclusively from the carefully chosen surroundings, which also become part of the work. In the case of Nold’s sculpture, the orientation on the roof is decisive for the expressive content of the artwork. The reflection of the morning sun makes the work what it is supposed to be.
In order to eliminate the copyright infringement, the real estate company was obliged to reinstall the sculpture on the roof. The economic-commercial interest in wanting to use the roof area was also not suitable to outweigh the artist’s interest in the integrity of his work.
Author’s consent required for modification
The ruling once again illustrates the scope of copyright protection. The copyright work is never to be considered in isolation. The external factors that the author took into account when creating the work are always of considerable importance.
In many cases, a change of location can only be undertaken with the consent of the author in order not to change the overall intellectual and aesthetic impression of the work. If consent is not obtained from the author, the infringer is threatened with cost-intensive warnings and claims for removal.