“Vaccinated, chipped, dewormed” insufficiently original to be protected by copyright

In a recent case, the Cologne Regional Court (‘LG Köln’) decided that the slogan ‘Geimpft, gechipt, entwurmt’ (German for ‘Vaccinated, chipped, dewormed’) is not eligible for copyright protection (14 O 24/22). In this ruling, the court applied earlier German jurisprudence on copyright protection for slogans and other types of short phrases.

Background

The lawsuit was filed as a negative declaratory action by a print-on-demand web-site that was offering T-shirts with ‘2021’, ‘Vaccinated, chipped, dewormed’ and ticked checkboxes next to each of the three words. The plaintiff had received a cease-and-desist letter from two German comedians who claimed that the copyright to this phrase belonged to them as they had come up with it during their shows. The phrase, commonly used with regard to animals, makes reference to the COVID-19 vaccination campaign.

The plaintiff denied any wrongdoing and filed a lawsuit so that LG Köln would confirm that there was no copyright infringement on its side.

Ruling

According to the plaintiff, the phrase ‘Vaccinated, chipped, dewormed’ does not qualify for copyright protection. Under §2(2) of the German Copyright Act, only an author’s own intellectual creation (‘persönliche geistige Schöpfung’) may be a work within the meaning of the Act. The plaintiff argued that the phrase failed to fulfil this requirement.

LG Köln first reminded that, to be protected by copyright, a linguistic work has to stand out from usual formulations through an imaginative choice of words or thought process. At the same time, the German ‘small coin’ (‘kleine Münze’) theory was applicable: that is, even minimal originality could be sufficient for copyright protection to arise.

According to LG Köln, the three words are commonly used in the veterinary sector. The only originality of the use at hand was that they were applied to humans vaccinated against COVID-19, with somewhat a humorous meaning. For the court, this alone is not sufficient to establish the author’s own intellectual creation, even when only the ‘small coin’ threshold is required.

The court stated that the situations at issue with ‘Vaccinated, chipped, dewormed’ is similar to the seminal ruling in ‘Wir fahr’n, fahr’n, fahr’n auf der Autobahn’ (‘We drive, drive, drive on the highway’). In this case initiated by Kraftwerk [yes, the ones from the Pelham litigation] a line from a Kraftwerk’s song was also denied copyright protection (20 U 46/77).

In LG Köln’s opinion, the analysis in ‘Vaccinated, chipped, dewormed’ is not contradicted by the Court of Justice (CJEU)’s ruling in Infopaq, where an extract of 11 words was at issue before the referring court.

This is because the three words in question would still need to express the author’s own intellectual creation, as per paras. 46-47 of Infopaq. Failing to meet this criterion, the two comedians would not own any copyright in the ‘Vaccinated, chipped, dewormed’ phrase. The plaintiff was thus allowed to proceed with the marketing of the T-shirts.

Comment

As our readers know, the criterion of ‘author’s own intellectual creation’ was adopted as a standard under the InfoSoc Directive through the Infopaq ruling. According to the CJEU, a work is considered original if it is its author’s own intellectual creation. The CJEU provided further guidance on the matter in its subsequent rulings.

In Germany, courts have frequently dealt with the question of copyright protection for short literary works, including slogans and book titles. They do so by deciding whether the level of creativity (‘Schöpfungshöhe’) is sufficient so as to recognise that the work expresses the author’s own intellectual creation.

In 6 U 120/15, the Cologne Higher Regional Court denied copyright protection for the book title ‘When the house gets wet feet’ (‘Wenn das Haus nasse Füße hat’). The court considered that the shorter the work is, the higher level of creativity would be required. At the same time, copyright protection was granted to a phrase by a late Bavarian comedian, Karl Valentin: ‘I wanted to like it, but I did not dare to’ (‘Mögen hätte ich schon wollen, aber dürfen habe ich mich nicht getraut’, 7 O 8226/11). There, the Munich Regional Court opined that the phrase had a very atypical phrasing, expressed through the use of multiple verbs, representative of the Bavarian way of speaking.

The question of copyright protection for short literary works became even more relevant with the advent of Twitter (now, X). In 2017, the Bielefeld Regional Court decided on the copyright protection of the tweet ‘When exactly did “Sex, Drugs & Rock n Roll” actually become “Lactose Intolerance, Veganism & Helene Fischer”?’ (4 O 144/16). The ironic tweet became popular and was used in postcards. The court denied copyright protection, stating that the tweet in question is a mere slogan that does not achieve the necessary level of creativity.

Although this was not specifically addressed in Infopaq, scholars suggest that the CJEU might have drawn inspiration from German copyright law. This makes it even more interesting to follow the German approach to the originality test, especially in the case of short literary works.