Asterix vs. Alcolix

René Goscinny, one of the most well-known comic authors of the 20th century, whose arguably most popular figure was the Gaul Asterix, would have turned 88 years old in August. He created the well-known Gallic comic series together with illustrator Albert Uderzo. However, this series also found imitators, such as the parody characters Alcolix and Obenix.

In the early 1990s, the comic book "Falsches Spiel mit Alcolix. Die Parodie." was the subject of a copyright dispute, which was ultimately also dealt with by the Federal Court of Justice (BGH). The issue depicts, according to its external plot, the production of a film in the film city "Comicitta" under the direction of director Spielbein.

A large number of the characters used were borrowed from well-known comic series, other characters depicted well-known persons or alluded to such. Scenes in the film city alternate with scenes that are performed for the film. The first film scene shows "US troops", which largely consist of figures from American comics, in their fight against a small Gallic village. The main figures in the film plot are Alcolix and Obenix, who are to be played by actors named Serge Perdu and Yves Pendant. When Serge Perdu refuses to continue playing Alcolix and gives himself over to alcohol, he is replaced by an actor who has qualified himself as a performer in the film "Timtim im Morgenland", which is inserted into the comic book by means of a "film screening". During the filming of a film scene with the new Alcolix performer, Renard, a "copyright attorney", becomes involved, who had previously tried unsuccessfully to assert copyright. In a wild rage, he attacks the director and beats a large number of comic figures standing around him as film participants with the words "Comic characters! Wherever you look comic characters!! I can't see any more comic characters!!!" Afterwards, he accidentally triggers a massive explosion, with which the story ends.

The holders of the exclusive exploitation rights in the Asterix comic series saw in the comic book an unfree adaptation and thus a violation of copyrights. They demanded injunction and damages. The publishers of the comic book, on the other hand, argued that it was merely a parody that maintained sufficient distance from the original work and thus did not violate copyrights. After the court of first instance dismissed the action, the appellate court granted the claim – with restrictions.

Decision of the Federal Court of Justice (BGH)

The Federal Court of Justice (BGH) quashed the appellate judgment with judgment of 11.03.1993 (I ZR 263/91) and remitted the case to the appellate court.

In its decision, the Federal Court of Justice (BGH) confirmed that the main characters Asterix and Obelix enjoy copyright protection, which is not limited to the protection of concrete graphic representations in various body postures with the respectively consistent and externally distinctive costume and hairstyle. The figures of Asterix and Obelix have been shaped through a distinctive combination of external characteristics, properties, abilities and typical behaviour patterns into particularly pronounced comic personalities and appear in the stories accordingly in a characteristic manner.

The Federal Court of Justice (BGH) did not follow the view that the comic book "Falsches Spiel mit Alcolix" was a free adaptation. According to the court's opinion, the representations of the appellate court that the comic book had borrowed from creative elements of older works contained in the Asterix series were incomplete. In determining whether free use exists, what matters is the distance that the new work maintains from the borrowed distinctive personal elements of the used work. A free adaptation is not excluded in the case of extensive adoption of the formal design of the protected original work. The question of whether free use exists must be assessed from the perspective of a viewer who knows the used work but also possesses the intellectual understanding required for the new work.

As a result, the dispute was remitted to the appellate court for further hearing and decision.

Conclusion

With this judgment, the Federal Court of Justice (BGH) confirmed the copyright protectability of comic characters. Furthermore, the judgment established principles for assessing a free adaptation of copyright-protected works, whereby the decisive factor is the distance to the original work, which depends on the perspective of a viewer who is familiar with the original but also possesses the intellectual understanding required for the new work.