Bonatz heir unsuccessful in final appeal

The 4th Civil Senate of the Higher Regional Court (OLG) Stuttgart, which is competent inter alia for copyright disputes, has rejected the action brought by the heir of Paul Bonatz against Deutsche Bahn AG and another railway company in the final appeal.

Within the framework of the railway project "Stuttgart 21" and the conversion of Stuttgart's main station from a terminal to a through station, Deutsche Bahn AG decided to demolish both side wings together with the staircase in the large ticket hall of the listed Bonatz building. The grandson of the architect, Mr Peter Dübbers, as one of the heirs of architect Prof. Paul Bonatz (1877 to 1956), is contesting this planned demolition, as in the heir's view this would mutilate the building as a total work of art.

In the first instance before the Regional Court (LG) Stuttgart (judgment of 20.05.2010 – Az. 17 O 42/10), the Bonatz heir was unsuccessful. In the appeal proceedings, Mr Dübbers, due to the meantime completed demolition of the north wing, demanded its reconstruction and demanded the cessation of demolition of the south wing and the staircase in the large ticket hall.

Court's decision
In its judgment of 06.10.2010 – Az. 4 U 106/10 the Senate confirmed the ruling of the first instance because the interests of Deutsche Bahn AG outweigh in the balance to be undertaken.

The author certainly has the right that the work created by him be preserved in an unchanged form. Since in particular with works of architectural art the need for changes on the part of the owner may arise over time, however, it is recognised that this conflict between copyright and ownership must be resolved by weighing the respective interests affected in the specific individual case. The author's interest in preservation must be weighed against the owner's interest in modification according to the circumstances of the individual case.

Decisive and material factors in the balance are the individual degree of creativity, the nature and extent of the interference and the purpose of use of the building. In this connection, the author must reckon with the changing needs of the owner. He knows that the owner wishes to use the building for a certain purpose and must therefore expect that changing needs may give rise to a need for modifications. In this context, alongside economic considerations, the so-called modernisation interest of the owner also plays a role. By contrast, purely aesthetic and taste-related grounds are irrelevant.

After weighing these criteria, the Higher Regional Court (OLG) concluded that here the railway's modernisation interest prevails, since the side wings of Stuttgart's main station lose their purpose as a result of the reconstruction. The extent of the interference, by contrast, is reasonable, since the defining component of the Bonatz building is preserved with the main building. In addition, the author's interests have considerably lost weight given the remaining protection period of only 16 years.

Conclusion

The Senate did not admit the revision, but the judgment can be challenged with a so-called non-admission appeal to the Federal Court of Justice (BGH). The BGH then decides on the admission of the revision. Ultimately, however, it is unlikely that the BGH will reach a different conclusion here.