Copyright Act, Secs. 5(2) and 42f(2) – Räuber Hotzenplotz
Headnotes by the Editorial Office
1. Strict requirements are to be placed on the existence of free use. Free use presupposes that the third-party work is not adopted in an identical or modified form, nor as a model or as a basis for the work, but merely as an inspiration for the author’s own work.
2. In the comparative assessment of the work used and the new work, it is necessary to identify the objective characteristics that determine the creative uniqueness of the work used, account being taken of the overall impression.
3. The freedom of parody does not end only when the content is discriminatory or there is a demonstrable violation of material interests. Rather, a comprehensive balance must be struck between the interests and rights of the rightholder and the freedom of expression of the user. This requires consideration of all circumstances of the individual case.
Supreme Court (Oberster Gerichtshof), judgment of 27 August 2024 – 4 Ob 97/24d
Facts:
[1] The plaintiff publisher holds various rights in connection with the children’s book series ‘Der Räuber Hotzenplotz (The Robber Hotzenplotz)’. The covers of these books show the character of ‘The Robber Hotzenplotz’ wearing a large black hat with a turned-up brim, a red hatband and a large feather, standing behind a fence as follows:
[2] The first defendant is the regional party chairman of the second defendant, a political party. As part of a political campaign, the defendants criticised an Austrian mayor and his party under the slogan ‘Räuber Rathausplatz’ (‘Town Hall Square Robber’), in particular denouncing the increase in electricity and gas prices, rents in public housing and municipal charges. They also used the following graphic illustration:
[3] Various versions of the image of the mayor wearing the robber’s hat, partly behind a fence, or even just the hat, were to be found on the website www.raeuberrathausplatz.at and on that of the second defendant www.*.at, on the first defendant’s Twitter profile, on the Facebook profile of both defendants as well as on flyers and billboards.
[4] The appeal court dismissed the plaintiff’s application for security based on title protection (Sec. 80 Copyright Act) and trade mark rights concerning the designation ‘Räuber Rathausplatz’ for political advertising.
[5] On the other hand, it issued an interim injunction ordering the defendants to refrain from using the above graphic depiction of the ‘Räuber Rathausplatz’ in this or any other edited or modified form of the graphic image according to the above book cover, including in particular only an edited or modified form of the hat depicted with a red hatband and large feather, until the proceedings had been finally determined.
[6] It set the value the subject matter of the decision at more than EUR 30,000 and refused leave to file an ordinary appeal on the law due to the individual nature of the case.
Grounds:
[7] The defendants’ extraordinary appeal on the law, with which they seek to have the application for security dismissed in its entirety, is inadmissible for lack of a significant legal issue within the meaning of Sec. 528(1) Code of Civil Procedure in conjunction with Secs. 402(4) and 78(1) Act on the Enforcement of Judgments and must therefore be dismissed.
[8] 1.1 The defendants do not object to the appeal court’s (implied) legal opinion that the book cover and the graphic representation of the robber’s hat are protected by copyright, nor do they object to the (re)formulation of the specific injunction, but believe that their publications are independent new creations within the meaning of Sec. 5(2) Copyright Act.
[9] 1.2 In this respect, it is sufficient to refer to the established judicial practice already cited by the appeal court, according to which, in view of the almost inexhaustible pool of freely usable material, strict requirements are to be placed on the existence of free use (see RS0076496; most recently in detail 4 Ob 37/22b – Gegendemonstration). Free use presupposes that the third-party work is not adopted in an identical or modified form, nor is it used as a model or as a basis for the work, but merely as an inspiration for the author’s own work (see RS0076503, RS0076452). Free use is characterised by the fact that, despite the connection with another work, it is an independent work that is distinct from it and completely eclipses the work on which it is based (cf. RS0076521).
[10] In the comparative assessment of the work used and the new work, it is necessary to identify the objective characteristics that determine the creative uniqueness of the work used, with account being taken of the overall impression (cf. RS0076460, RS0076477, RS0076469).
[11] 1.3 The appeal court’s view that the essential parts of the original work here are the figure of the robber looking over a fence and the peculiar design of the hat, is in the specific case just as tenable as its further finding that these characteristic elements were adopted by the defendants and that the differences in the graphic design and the text would in no way lead to the original fading into the background.
[12] The argument that only the basic idea of the depiction of a robber was adopted here is refuted by the defendants themselves when they argue elsewhere in their appeal that it was clearly apparent to those addressed that they had made use of the well-known work.
[13] 2.1 In addition, the defendants relied on their fundamental right to freedom of expression under Art. 10 of the European Convention on Human Rights (ECHR) and the free use of a work as a parody (Sec. 42f(2) Copyright Act); the appeal no longer relies on the citation right (Sec. 42f(1) Copyright Act), which was rejected by the appeal court in the present case.
[14] 2.2 Where the defendants object to the restrictive interpretation of this justification by the appeal court, they are reminded that Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive) primarily protects the authors’ interests, which can only be restricted by the Member States under the narrow conditions of Art 5 (see also the so-called 'three-step test' in Art 5(5): ‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’).
[15] It is therefore disputed whether fundamental rights, in particular freedom of expression and artistic freedom, may be used as a justification for copyright infringement (see, for example, 4 Ob 37/22b [paras. 3.1 et seq.] with further references; German Federal Supreme Court – I ZR 74/22). However, a restrictive interpretation of the justification is in any case in line with the previous judicial practice of the Supreme Court of Justice and the CJEU (see RS0108465; C-201/13, Deckmyn and Vrijheidsfonds [para. 22]; C-476/17, Pelham [paras. 63 et seq.]).
[16] 2.3.1 ‘Parody’, on which the appeal is primarily based, is regulated – autonomously – in Art. 5(3)(k) of the Infosoc Directive, according to which the Member States may provide for exceptions or limitations to the rights provided for in Arts. 2 and 3, namely also for ‘use for the purpose of caricature, parody or pastiche’.
[17] In accordance with Art. 17(7) of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (DSM Directive), Member States shall ensure that users in each Member State are able to rely on any of the following exceptions or limitations when uploading and making available content generated by users on online content-sharing services: […] b) ‘use for the purpose of caricature, parody or pastiche’.
[18] The 2021 Copyright Amendment Act (Federal Gazette I No. 244/2021) subsequently laid down in Sec. 42f(2) Copyright Act that a published work may be broadcast or made available to the public for use for the purpose of caricature, parody or pastiche via a large online platform (Sec. 18c Copyright Act) and reproduced for these purposes.
[19] 2.3.2 Even if this justification were extended to all of the defendants’ uses, the appeal on the law does not succeed in showing that its denial would be unjustifiable in the individual case.
[20] The appeal court based its assessment on the decision of the CJEU in C-201/13, Deckmyn and Vrijheidsfonds, and set a high threshold for the justification of an infringement of copyright in the case of a mere instrumentalisation of the work for a parodistic dispute between third parties. Since the plaintiff had been unintentionally drawn into a political dispute without being able to take up a position of its own, and since not only the defendants’ content-based criticism, but even the robber motif could have been conveyed without infringing copyright, the balance of interests weighed in favour of the plaintiff.
[21] This assessment is within the courts’ necessary discretion in the individual case. Thus, the CJEU also emphasised in C-201/13 (para. 26 et seq.) that when applying the exception for parodies in a specific case, an appropriate balance must be struck between the interests and rights of the authors and the freedom of expression of the user, for which all circumstances of the individual case must be taken into account. A (renewed) appeal to the CJEU (as suggested by the defendants) is therefore not necessary.
[22] Contrary to the arguments raised in the appeal on the law, the freedom of parody therefore does not end only when the content is discriminatory or there is a demonstrable violation of material interests. Rather, a comprehensive balance must be struck, in which the interest of the holder of rights to a children’s book in not being associated with a political campaign (of whatever content) must also be taken into account.
[23] Conversely, the appeal court was justified in finding that the defendants could have emphasised their political standpoint and the stylistic device of the parody of a robber without infringing the plaintiff’s copyright, and that the recourse to the graphic representation of ‘Räuber Hotzenplotz’ here serves less to convey their political message than to exploit its notoriety.
Translated from the German by David Wright-Policepayeh,
Kilb, Austria.
