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Tuesday, 24 December 2013

Regional Court of Cologne: keep that pig off the (blue) sofa!

According to Germany media reports (here and here) an interesting copyright case, inter alia, relating to a sofa and a pig was recently decided by the Regional Court of Cologne (LG Köln, case reference: 14 O 613/12).

The original "red couch"
German photographer Horst Wackerbarth, who works as a photo- and video-artist, has become well-known for his “Red Couch” projects.  The “Red Couch” projects are best described as conceptual photography and Mr Wackerbarth has been travelling the world since the 1970s and been taking photographs of humans – sometimes together with animals - sitting on a red couch. So far he has taken photographs of more than 700 people from 52 countries.  His aim is to create a gallery of humankind (“Galerie der Menschheit”).   He has won several awards for this work and has been the subject of several TV documentaries.

Blue Couch
The Stadtwerke Bonn, a municipal utilities company from Bonn, the former German capital, has been using a similar concept to advertise – in hundred of photographs - their services since 2008:  they have been taking photographs of people sitting on a blue couch and used these pictures in advertisement.  Mr Wackerbarth is not impressed, indeed he views the Stadtwerke Bonn’s advertising campaign as a copy of his works and has taken the utility company to court arguing copyright infringement.  A previous court case brought by Mr Wackerbarth against the same defendant was based on unfair competition claims and failed to succeed.


German media now reports of the Cologne Court’s decision (the full text of which does not appear to be available yet....) and it appears that the judges only granted copyright protection to six of Mr Wackerbarth’s photographs.  Apparently only these six pictures showed a sufficient degree of creativity (Schöpfungshöhe) and individuality to fall under the comprehensive copyright protection of Article 2 (1) No. 5 German Copyright Act (“photographic works”), the remaining images most likely only falling under Article 72 (protection of photographs).  

According to media reports the judges explained that the “mere presentation of a subject matter will not attract copyright protection”, in other words: there is no copyright protection for ideas as such - even if that maxim does sometimes feel harsh.  Accordingly, the Bonn Stadtwerke can continue their campaign more or less unchanged but will face a disciplinary fine of Euros 250000 should they recreate one of the protected subject matters, which include a pig sitting on a sofa...

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