Adding a glass canopy to a mosque infringes architect’s copyright and the canopy must be removed, says Cologne Regional Court

In a recent decision, the Cologne Regional Court (LG Köln) found that adding a glass canopy to a mosque infringed the architect’s copyright and must be removed (14 O 12/22).

Background

This case involved the mosque’s architect (plaintiff) and the builder and owner of this mosque (defendant), without however providing further details as to the parties or the name of the mosque. It seems, from the data available, that the lawsuit concerned the Cologne Central Mosque [update: one of our readers suggests that it is rather the Yunus Emre Mosque in Aachen -- see the comments below for some illustrations].

The defendant commissioned the plaintiff for a plan of the mosque, based on several earlier drafts prepared by other architects. The plaintiff’s suggested design was approved by the defendant as well as by the local authorities of the city where the mosque was to be constructed.

In 2008, the parties concluded a contract, which included the following clauses [translation by this Kat]:

§ 4 Protection of the work and of the author

[…]

4.3 Statutory copyright protection remains unaffected.

[…]

§ 13. Copyright

(1) The architect retains all rights to which he is entitled under copyright law, unless they have been transferred to the client in accordance with the content of this contract or on the basis of [any additional] agreement. The client owns the copyright to the image of the building, which is the object of this contract.

(2) The client has the right to use the plan for the construction described in § 1. He is entitled to use the services of the architects for the agreed purposes and to make changes and additions to the built structures and other systems while maintaining the intellectual individuality [“Eigenart”] that the client considers appropriate with regard to their use. In this case, no special remuneration is owed.

(3) Changes to parts of the building that affect the architect's copyright are not permitted without the architect's involvement. […]

The mosque was inaugurated in 2018.

In 2022, the defendant added a glass canopy on the western part of the façade. According to the defendant, the canopy was necessary to protect the terrace of a café, located in the mosque, from the weather. It was also needed to prevent rain from falling into the mosque through the café entrance.

The architect filed a lawsuit against the mosque’s owner, claiming the infringement of his moral rights under §§ 14 and 39 of the German Copyright Act.

Under § 14, the author has the right to prohibit the distortion or any other derogatory treatment of their work (i.e., the mosque), “where such action is capable of prejudicing the author’s legitimate intellectual or personal interests in the work”.

Under § 39(1), the holder of a right of use (i.e., the mosque’s owner) is not permitted to alter the work, unless otherwise agreed by the parties. Nevertheless, changes to the work are permissible where author cannot in good faith withhold their consent to such changes (§ 39(2)). In our case, the plaintiff asked for removal of the canopy.

According to the defendant, there was no copyright infringement issue in this case. The controlling authority was §13(2) of the contract between the parties, which allowed the defendant to make the appropriate changes, and which took precedence over any statutory provisions.

Judgment

LG Köln began its judgment by stating that under §2(1)(4) German Copyright Act, works of architecture are protected by copyright, provided they represent a personal intellectual creation [“persönliche geistige Schöpfung”].

The individuality necessary for a personal intellectual creation to exist requires that the building be distinctive from a run-of-the mill structure of its kind. In the words of the court, “this is judged by the aesthetic impression that the building conveys according to the average judgment of a person who is reasonably susceptible to the arts and reasonably familiar with artistic views” [Kat’s own translation]. This is known as an “informed observer test” in deciding on copyright protection for works of applied arts, first introduced by German courts in 1911 (and thoroughly explained here by Ansgar Ohly).

Factors to determine if a building meets this test includes the building’s size, proportion, integration into the terrain, the surrounding buildings, space planning, consistent implementation of a motif, design or structure of individual components such as the façade or the roof, and that all individual components of the buildings are related to each other so that they merge into one unit.

This approach, in the view of LG Köln, corresponds to the EU law concept of a “work” under Directive 2001/29/EC.

Considering the architect’s use of a Western European architectural style and comparing the subject mosque with others, LG Köln ruled that this mosque is eligible for copyright protection.

In the opinion of LG Köln, although the relationship between §14 and §39 of the Copyright Act has not been conclusively clarified in either the case law or the academic literature, this is not germane to the dispute: the canopy infringes both of these rights.

In applying § 14, explains LG Köln, the court must: (1) assess objectively whether a distortion or impairment of work occurred; (2) analyse whether such distortion or impairment is likely to harm the interest of the author; and (3) balance the interests of the author with those of others (i.e., the owner of the building or the general public). In balancing these interests, the court shall take into account the scope of the changes made to, and the intended purpose of, the work. LG Köln gives an example of a public building, such as a railway station, where the public interest in a change may prevail over that of the author.

In the case at hand, LG Köln concluded that the newly issued canopy gives the visual impression of an add-on that it is not consistent with the mosque’s overall design. A potential client of the plaintiff architect might conclude that the addition of the canopy was also part of the architect's original design.

Given the unsatisfying unesthetic impression conveyed, such potential client might thereby conclude incorrectly that the addition of the canopy was the plaintiff’s creation. Such a result might prejudice the architect’s chances to attract new clients, should the architect wish to use the mosque as a selling point.

As such, in the view of LG Köln, the plaintiff's interest in removing the canopy take precedence over the defendant’s interests in carrying out the addition.

Regarding the defendant’s argument that §13(2) of the contract takes precedence, the court reminded that §13(2) allows only those changes, which do not impair the intellectual individuality of the mosque. Such impairment occurs in the case of the canopy, so that the changes are prohibited by the contract.

This interpretation, according to the court, is reinforced by §4(3) of the contract, according to which the statutory copyright protection remains unaffected by contractual clauses.

Nor can the defendant base its claim of right on the argument that absent the canopy, rain might seep into the building. Such a defect should have been addressed at the initial construction stage, rather than later as a defence to infringement. 

LG Köln accordingly ordered the defendant to remove the glass canopy from the mosque. In doing so, LG Köln contributed to the jurisprudence on the architects' moral rights (see, among others, the cases covered by The IPKat here and here ). 

The 1911 "informed observer test" for copyright protection to works of applied art also made this Kat wonder: was this the origin of "informed user" in EU design law?