The creative distance is an important factor in determining whether a copyright infringement has occurred. This is also shown by a ruling from the OLG Frankfurt regarding Euro banknotes (Case No. 2-06 O 52/219).
The depiction of Europe, as found on the backside of every Euro banknote, is likely familiar to everyone. The illustration of the European continent was created by a geographer and cartographer. For this, he used and edited various satellite images and digital files. The resulting image was incorporated into the design of the Euro banknotes. The cartographer transferred the usage rights, which later passed to the European Central Bank, for the comparatively modest sum of 2,180 Euro.
He now demanded an appropriate additional payment from the European Central Bank under the Copyright Act. If an author has granted another party a usage right under conditions that prove to be disproportionately low, he can request an appropriate remuneration according to § 32a para. 1 Copyright Act, explains the business law firm MTR Rechtsanwälte.
The cartographer now based his claim on this and demanded payment of an appropriate compensation or additional remuneration of 2.5 million Euro for the past years and 100,000 Euro annually over the next 30 years from the European Central Bank. However, the OLG Frankfurt dismissed his claim with a ruling on May 18, 2022.
In its reasoning, the OLG stated that the file of the plaintiff was indeed used as a starting point for the design of the Euro banknotes. However, the depiction on the banknotes differed so significantly from the plaintiff’s satellite image that an independent new work had been created. The characteristics of the original protected work had receded so far that they appeared only as inspiration for the new, independent work, according to the OLG. The plaintiff therefore had no claim to additional remuneration, the OLG decided. The judgment is not yet final.
The decision of the OLG Frankfurt highlights that the creative distance between the original work and the new work is crucial for copyright protection. However, this is often a fine line. Lawyers experienced in copyright law can provide advice.
