The less planned the design, the more permissible the use of the work?

When copyrighted works may be reproduced, distributed and publicly communicated as 'essential accompaniment' is of particular importance for the production of feature films and documentary films. Nevertheless, this question remains essentially unclear even 30 years after its statutory regulation. An interesting decision has now come from the field of advertising.

Whereas previous case law called for considerable restraint in recognizing essential accompaniment, the OLG Köln (Judgment of 23.08.2013, Az. 6 U 17/13) has now even permitted the depiction of an artwork in a furniture catalogue.

The claimant, the author of a painting 'untitled 2002/08', had made the painting and several other works available to the defendant, a manufacturer of office furniture, for their sales rooms. After the painting was returned to the claimant, he discovered to his surprise that the defendant had made the painting publicly accessible on its website without attribution and had reproduced it in a print catalogue. The claimant issued a cease and desist letter and demanded an injunction and information on the type, extent and duration of use. The defendant issued a declaration of cessation but refused to provide the information. The claimant therefore filed a suit before the LG Köln for information and subsequent payment of a notional licence fee. After the LG Köln denied a copyright infringement, the claimant appealed.

Decision of the Court

The OLG Köln also found no claims against the defendant. The painting was merely inessential accompaniment in the reproductions. The public communication and reproduction by the defendant was therefore permissible.

Inessential accompaniment is to be assumed when the accompaniment has no substantive relationship to the main subject and is of no significance to it due to its incidental and arbitrary nature. The actual subject matter must be in the foreground in such a way that the accompaniment could ultimately be exchanged without it being noticed. What is to be understood as the 'actual subject matter' is to be ascertained from the overall context. In the present case, this is the defendant's website or print catalogue.

The purpose of the catalogue is accordingly to promote the sale of office furniture manufactured by the defendant. These are clearly in the foreground. The objects depicted are purely background elements that are easily exchangeable. On the website too, the painting does not stand out noticeably. Rather, the painting is depicted so small and pixelated that the details of the painting are no longer recognizable. On this basis, the painting is to be regarded as inessential accompaniment.

Conclusion

The judgment of the Higher Regional Court (OLG) Cologne is not convincing. Even if the design in individual cases sometimes (inadvertently) suggests this, backgrounds of catalogue photographs usually do not come about 'by chance', but are deliberately selected. The average viewer also knows this, so no other impression can arise. Mere careless and therefore seemingly arbitrary design cannot in any case be a licence to use art in advertising catalogues. Only to the extent that the court relies on reduction in size and pixelation for its reasoning can this be considered an argument. However, if the artwork remains recognizable, this would not have satisfied the previous prerequisites laid down by case law for assuming essential accompaniment. With the decision of the OLG Köln, these prerequisites are now completely open again.