The Berlin Court of Appeal ruled on January 16, 2020 that“an image of a virtual object created on a computer using electronic commands” does not constitutea photograph within the meaning of Section 72 of the German Copyright Act (UrhG) and therefore does not enjoy protection under Section 72 et seq. UrhG (case reference: 2 U 12/16 Kart). In order to be recognized as a protected work within the meaning of the Copyright Act, such a graphic must have a sufficient level of creativity within the meaning of Section 2 para. 2 UrhG.

Decision of the Berlin Court of Appeal: No protection as a photograph

The Court of Appeal came to the conclusion that the images in dispute are neither protected as works of fine art (Section 2 (1) No. 4, (2) UrhG) nor as scientific or technical representations (Section 2 (1) No. 7, (2) UrhG). In order to be recognized as a work of fine art, a computer animation or graphic must be a personal intellectual creation within the meaning of Section 2 para. 2 UrhG, which has such a degree of aesthetic content that it can be considered an “artistic” achievement. The Court of Appeal found that the graphics in dispute did not meet these requirements and therefore did not enjoy protection under the Copyright Act.

Height of creation as a decisive factor for the protection of computer graphics

It is important to note that the judgment of the Berlin Court of Appeal only applies to the specific case and that the protectability of computer graphics generally depends on various factors. In certain cases, computer graphics can be recognized as works of fine art or scientific or technical representations if they are sufficiently creative within the meaning of Section 2 para. 2 UrhG.