No copyright infringement with sufficient individual character

OLG Düsseldorf: No copyright infringement if there is sufficient individuality

Copyright is not infringed if a work has sufficient creative individuality. This emerges from a judgment of the Düsseldorf Higher Regional Court of February 24, 2022 (Az.: I-20 254/20).

If a mere copy of a copyrighted work is made or if there is a high degree of similarity, it can be assumed that copyright has been violated in many cases. However, the greater the distance between the two works and the more individual the new work has, the lower the risk of copyright infringement, explains the commercial law firm MTR Rechtsanwälte.

This is also shown by a decision by the Düsseldorf Higher Regional Court on the Düsseldorfer Radschläger, the landmark of the North Rhine-Westphalian state capital. Based on a copyrighted figure of the cartwheeler from 1961, the defendant had created a work on the subject of the cartwheeler. The heiress of the author took action against this and asserted claims for injunctive relief.

However, her lawsuit was unsuccessful. Like the Düsseldorf Regional Court, the Düsseldorf Higher Regional Court also dismissed the complaint in the appeals process. The 20th Civil Senate of the Higher Regional Court was unable to determine any unlawful copyright infringement. According to the judges, there are significant differences between the original and the defendant’s motive. The design of the new motif is even more abstract than the original. In addition, due to its softer shape, it is only remotely reminiscent of the angular original.

In addition, the figure in the new work is embedded in a circle and thus represents a reference to a wheel. It also takes up the ambiguity of the term cartwheeler. According to the Higher Regional Court, this created an even greater distance to the plaintiff’s work. The appeal to the Federal Court of Justice was not admitted.

The two works differ significantly in their design. This has created a sufficient distance so that there is no infringement of copyright.

However, there is a fine line to be drawn as to whether copyright infringement has occurred. Lawyers experienced in IP law can provide advice.

MTR Rechtsanwaltsgesellschaft mbH is a law firm specializing in commercial law. The lawyers advise in particular on all aspects of business law, commercial law, corporate law and tax law, capital market law and banking law, IT law, IP law and distribution law. Clients are national and international companies and corporations, institutional investors and private clients. MTR Rechtsanwälte are internationally active and are located in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich and Stuttgart.

MTR Attorneys at Law Ltd
Michael Rainer
Konrad-Adenauer-Ufer 83
50668 Köln
+49 221 2927310
+49 221 29273155
[email protected]

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