Copyright protection for a recurring image motif?

The Regional Court (LG) Cologne had to decide whether a photographer could demand design protection under copyright law for images featuring the recurring motif of a red sofa in various environments, and thereby exclude third parties from any imitation of his basic idea.

The plaintiff is a photographic artist who has been photographing people of different origins on or with a red sofa in unusual surroundings since 1979. The photographer used the motif of the red sofa for a variety of further commissioned works and licensed it at the beginning of the 1990s for both an advertising campaign of an old beer brewery and for a television magazine series.

In 2008, an advertising agency developed a campaign featuring photographs with at least a similar image composition. The photographs showed a blue sofa depicted in an unusual setting with people from different population groups.

The photographer initially claimed against the advertiser on the grounds of avoidable misleading origin, reputation exploitation, advertising and licensing obstruction arising from infringement of competition law. However, the claims were dismissed both before the Regional Court (LG) and the Higher Regional Court (OLG) Cologne.

In the present proceedings, the photographer is now asserting claims under his copyright. He is of the legal view that the series 'Red Sofa' already fulfils the criteria of a personal intellectual creation as such, as it exhibits uniform and distinctive characteristics. The defendant's campaign 'Blue Sofa' adopts these characteristic design features of the plaintiff's original series. Furthermore, twelve photographs of the defendant's campaign would also infringe upon individual concrete image compositions of the plaintiff.

The Regional Court (LG) Cologne then had to decide on this.

Court's Decision

Byjudgment of 12.12.2013 – Az. 14 O 613/12 – the Regional Court (LG) Cologne decided that the advertiser must cease using half of the photographs.

However, this claim does not arise from infringement of the 'Red Sofa' work series, as this is not an independent copyright work. The selection of the subject matter in itself, in the style of a 'ready made', is not yet a personal intellectual creation by the photographer. This creative basic idea is not entitled to any special legal protection, but only its concrete creative implementation in the respective individual images. There is therefore no design protection in this sense.

However, in the case of half of the photographs, there is a non-free adaptation in which the photographer's original works are recognisably served as a template and not merely as inspiration. In these cases, the agency did not create a new copyright work, but rather infringed the copyright held by the plaintiff in the six works.

In the case of the other six images, the 14th Chamber of the Regional Court (LG) Cologne decided exactly the opposite and dismissed the action.

Conclusion

The distinction between whether a work is a new creation or merely a copy of an existing work is extremely demanding when it is not an identical copy of the piece of work. As a guide, it can be said that the new image must be recognisably something new. If the new work appears only as a slightly altered copy of the original work, it will in most cases be a non-free copy requiring permission.