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Tuesday, 27 August 2013

The BGH, Pippi Longstocking and a fancy dress

Pippi (the TV character)
on a German stamp 
On appeal from the Higher Regional Court of Cologne, the German Federal Court of Justice (Bundesgerichtshof, or short: BGH) recently decided that third parties (here: a super market chain) may use the image of a literary figure (here: Pippi Longstocking or Pippi Langstrumpf as she is known in Germany) in their advertisements without consent of the copyright owner provided they only adopt a few "external" characteristics of that literary figure.

In its decision of 17 July 2013 (case reference I ZR 52/12) the BGH found that the fictional character "Pippi Longstocking", as created by the famous Swedish author Astrid Lindgren, enjoyed copyright protection due to the literary character’s "unique personality".  However, the court rejected the claim of the heirs of the late author in so far as it was based on copyright law and sent the case back to the court of appeal for a new decision.  The court noted that it had not assessed claims under unfair competition laws. So far we only have the court's press release which can be retrieved here (in German, No.127/2013).

The heirs of the author, who now own the copyright subsisting in the artistic work of Ms Lindgren, had sued the super market chain for copyright infringement. The chain was selling carnival costumes showing the Pippi character in his shops and had distributed marketing material within Germany, including prospectuses which showed photographs of a five-year old girl and a young woman in Pippi style outfits (red hair wig with pigtails, a t-shirt and long stockings with a green and red striped pattern). The photos were also printed on the costume packaging of which the defendant had sold about 15,000 units. The claimants demanded damages in the form of a notional license fee of 50,000 Euros.

The First Instance Court (Regional Court of Cologne) and the Court of Appeal (Higher Regional Court of Cologne), agreed with the claimant under Article 97(2) UrhG.  By way of background: Article 97(2) UrhG states that "authors… may, if (an) infringement was intentional or the result of negligence, recover, as justice may require, a monetary indemnity for the injury caused to them even if no pecuniary loss has occurred."

In its decision of 17 July 2013 the BGH accepted that the literary figure of Pippi Longstocking was a literary work. As Pippi has a distinct personality (unique personal characteristics with distinct external features) because her external features were unusual  (including carrot-coloured hair in pigtails, a heavily freckled nose in the shape of little potato, etc). Pippi also had specific personality traits (difficult family but always happy, witty and full of fantasy, etc.).  Nonetheless, the court concluded that the defendant's use did not amount to copyright infringement under Article 97 (2) UrhG.  Even though the observer was able to recognise that the defendant’s images were meant to be Pippi, the advertisements only adopted some of those external characteristics (emphasis by the IPKat, not in the original) that were legally relevant to the existence of its copyright protection.  Copyright that subsisted in a literary figure would not be infringed,  where a third party only copied "a few selected external features", as it had happened here by copying Pippi’s style of clothing, if these by themselves would not be enough to create copyright protection for that figure. Therefore, the BGH decided to send the case back to the Court of Appeal for a new trial and decision.

Merpel notes that, in its press release, the BGH states "... that it is clear to observer that the figures [as depicted in the defendant’s advertisements] are meant to be Pippi...”, which - at a first glance - is not completely without contradiction.  However,  the BGH’s presiding judge Professor Bornkamm was cited in German media as having said that copyright law was not meant to prevent ‘...the ability to adopt another identity by way of fancy dress’ (see Der Spiegel Online, 18 July 2013). As such, it will – as always - be interesting to see the full decision.

1 comment:

Anonymous said...

Well, while the advertisment may have shown "Pippi" (i.e. a Girl/woman having red pigtails, freckles and a potato-shaped nose wearing the typical Pippi Dress, they apparently only sold the dress, but not the girl/woman that looks like Pippi AND wears the typical dress.

Maybe the court therefore came to the conclusion that only some external characteristics were embodied in the present case.

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