The creative distance is an important point in assessing whether a copyright infringement exists. This is also shown by a judgment of the OLG Frankfurt on Euro banknotes (Az. 2-06 O 52/219).
The depiction of Europe, as found on the back of every Euro banknote, is likely familiar to everyone. The image of the European continent was created by a geographer and cartographer. He used and edited various satellite images and digital files for this. The resulting image was incorporated into the design of the Euro banknotes. The cartographer transferred the usage rights, which later went to the European Central Bank, for the comparatively modest sum of 2,180 euros.
He is now demanding appropriate additional compensation from the European Central Bank under the Copyright Act. If an author has granted a usage right under conditions that turn out to be disproportionately low, they can demand appropriate compensation according to § 32a para. 1 of the Copyright Act, explains the business law firm MTR Legal.
The cartographer relied on this and demanded from the European Central Bank the payment of appropriate compensation or additional compensation of 2.5 million euros for the past years and 100,000 euros annually for the next 30 years. However, the OLG Frankfurt dismissed his lawsuit with the judgment of May 18, 2022.
In its reasoning, the OLG stated that the plaintiff’s image file was indeed used as a starting point for the design of the Euro banknotes. However, the depiction on the banknotes differs so significantly from the plaintiff’s satellite image that a completely new independent work had been created. The features of the original protected work had receded so far into the background that they only served as inspiration for the new, independent work, according to the OLG. Therefore, the plaintiff is not entitled to additional compensation, decided the OLG. The judgment is not yet legally binding.
The decision of the OLG Frankfurt clearly shows that the creative distance between the original and the new work is crucial for copyright protection. However, this is often a fine line. Experienced attorneys in copyright law can provide advice.
