Copyright Protection of Characters in Germany
The protection of a literary character is based on a distinctive combination of traits and external appearance. The external appearance alone can not be protected.
Works protected by copyright are marketed on a large scale in Germany. The economic sectors involved, (e.g. press and publishing, broadcasting and the film industry) account for a substantial part of the German gross national product.
In practice, especially characters are of particular commercial relevance as these can form – in particular as derivative and spin-off products – the basis for books, motion pictures, television productions, computer games, merchandise and other such forms of exploitation.
The possibilities are endless. For instance, beyond being the protagonist of several Hollywood blockbuster, the Marvel comic hero Spiderman is also marketed as an action figure, as part of card and board games as well as radio plays.
As often in a copyright matter, the question whether and to what extent a certain item, here the character, is protected by copyright is a customized one and requires careful checking. However, the following article shall provide some guidance on how characters can be protected under German copyright law, which specific problems arise when characters are partly used for another work and which subject matters have been clarified recently by the Supreme Court.
Literary and Graphical Characters
Works protected by German copyright include literary, scientific, artistic, musical, photographic and cinematographic works as well as computer programs. A list of non-exhaustive examples is contained in section 2(1) of the German Copyright Act.
To enjoy protection under the Act, the works have to meet an important requirement. They shall constitute what the law defines as a “personal intellectual creation”. As there are different ways to create a character, there are also different ways a character may gain a copyright protection.
Firstly, a character can be created by describing it in a novel. If the character features a distinctive combination of personality traits and physical appearance marking it as unique, the German courts grant the copyright protection not only to the novel as a work of literature, but also to the character itself, regardless of the specific context and the personal interplay of the novel (so called fable).
Such characters are called literary characters. In German case law, examples for that are “Sherlock Holmes” (Supreme Court 1957), and, just recently, “Pippi Longstocking” (Supreme Court 2013). Both characters have as such been recognized as protectable under the copyright (the substantiation of such protection will be examined further in the following section).
Protection to the Character Itself
Moreover, a character can be illustrated in pictures, animated cartoons or computer games. Such illustrations can be protected as works of visual art. Similar to the jurisdiction for literary characters, German courts grant the copyright protection not only to such illustrations, but also to the depicted character itself, if it has distinctive features that mark the character as a unique personality.
Such characters are called graphical characters. Examples for very popular graphical characters in Germany are, for instance, the invisible Kobold Pumuckl and, again, Pippi Longstocking.
It is of course also possible for a character to be both, protected as a literary character and as a graphical character. However, due to the fact that there are normally different creators involved, the situation becomes quite difficult.
For example, in 2007 the illustrator of the character “Pumuckl” had the illustrations of this character in a book prohibited by the Higher Regional Court of Munich (2007) even though the publisher of that book had the exploitation rights of the novels of Pumuckl. As a matter of fact, there are not many cases of such complexity, so they shall be no further subject in this article.
Adoption or Fair Use?
To summarize, not only the unaltered copy of an illustration or a novel may lead to a copyright infringement, but also the isolated use of its graphical, respectively its literary characters.
However, regarding the legal assessment of an unrightfully utilization the German Copyright Act distinguishes between an adoption (Sec 23 of the Act) and the fair use of a work (Sec 24 of the Act). In order to find out whether the new work is an adoption or fair use, the German courts examine whether the features taken from the original work are “fading away” in view of the new work.
The most common case of fair use is a parody or persiflage, the inner distance of the new work to the original one being obvious to the audience. But there are also cases more difficult than that. A good example is the “Mecki case” of the Supreme Court in 1958.
Mecki is a humanized hedgehog who became famous as the mascot of a well-known German magazine. In 1958, the editors of the magazine filed a lawsuit against another publisher, who had printed a book called “Jackl the Hedgehog”. As it was obvious that Jackl was not an unaltered illustration of Mecki, the plaintiff relied on the fact that by copying Mecki’s essential features, the defendant had adapted and published a new version of Mecki, which only would have been allowed with the consent of the plaintiff.
The court however, ruled that Mecki’s essential feature was not the fact that he as a hedgehog was humanized, because that feature had been given to characters many times in the past, for example in illustrations of the famous fairytale “hare and hedgehog” by the Brothers Grimm. Instead, the court found that it was his facial expression that made Mecki stand out from all other humanized hedgehogs.
According to the court, his strong contouring would lead to the imagination of a smart hedonist that could cope with all situations of life. In contrast, Jackl would have a naive everyman-face reflecting his lack of experience in life, the court stated. Consequently the court did not classify the illustration of Jackl as an adoption, but as a fair use of the graphical character Mecki.
Sherlock Holmes Meets Pippi Longstocking
In the year 1957 the Supreme Court dealt with a case in which characters in a movie were dressed as the literary characters Sherlock Holmes and Dr. Watson in order to make the other movie characters – but not the audience – believe that they actually were Holmes and Dr. Watson.
The court stated that it had its doubts whether the utilization of the external appearance of a literary character alone could be regarded as an adoption of the literary character, but left the question open in the end.
Since then this has been quite a disputed point within the jurisdiction of the German Regional Courts. However, in the last couple of years most courts would agree that the use of the external characteristics was sufficient to constitute a copyright infringement.
Especially the owner of the copyrights of the literary works of Astrid Lindgren had won several cases against a well-known German retail chain which had published advertising leaflets with the picture of a five-year-old girl and a young woman, both dressed in a Pippi Longstocking carnival costumes.
Most of the courts ruled that depicting a girl dressed as the literary character Pippi Longstocking – the illustrations of Pippi Longstocking were not made by Lindgren but Ingrid Vang Nyman and were therefore not part of that dispute – could not lead to a “fading away“ of the original work’s features and was therefore an adoption. The fact that the picture only showed the external features of Pippi Longstocking could not lead to a different result, as it was in the nature of things that a picture could not show her traits.
Lower Courts Overruled
In 2013, the “Pippi Longstocking matter” finally culminated in the Supreme Court overruling the lower courts. It agreed that it was obvious for the audience that the displayed girl should embody Pippi Longstocking. However, in the court’s point of view the audience would have only the picture of the literary character in mind because they could establish a link between the displayed external appearance and the traits which they knew from the novel.
As a result, the court stated that as the protection of a literary character was based on a distinctive combination of traits and external appearance, the external appearance alone could not be protected. The court further stated that this impression was reinforced by the fact that the consumer realized that the displayed girl was only dressed for carnival and was not pretending to be Pippi Longstocking. By that, the court also finally answered the left open question of its Sherlock Holmes decision in 1957.
Even though the Supreme Court now solved the inconsistency between the requirement to gain protection and the scope of protection for a literary character, it referred the decision back to the Higher Regional Court of Cologne. This court will now have to decide whether the offering of the carnival costume by the retail chain was in accordance with Sec 4 Nr.9 of the Act of Unfair Competition.
Dr. Thomas Jochheim
Klinkert Zindel Partner
Frankfurt am Main, Germany
German Copyright Act (in English):
Case Law in Germany
“Sherlock Holmes” (15.11.1957 – I ZR 83/56)
“Mecki” (1.4.1958 – I ZR 49/57)
“Mecki II” (8.12.1959 – I ZR 131/58)
“Pippi Longstocking “ (17.7.2013 – I ZR 52/12 2013)
Higher Regional Court of Munich
“Pumuckl” (20.12.2007 – 29 U 5512/06)