OLG Frankfurt, judgement of 13.02.2025 - 11 U 10/23
On the question of whether a stylised comic drawing ("Cat-NÖ") enjoys copyright protection and whether its almost identical commercial use by third parties constitutes an infringement of copyright.
Initial situation
The plaintiff, a full-time professional illustrator, created a comic drawing of a cat lying from behind with its paw raised and its "middle finger" outstretched, known as "Katze NÖ". This illustration was offered online via a print-on-demand platform (Spreadshirt). The defendants used a very similar drawing on various products (e.g. mugs, doormats), also for commercial purposes. The plaintiff accused the defendants of having plagiarised her copyrighted work, whereupon she asserted claims for injunctive relief, information, damages and destruction.
Central issue in dispute
The core of the legal dispute was the question of whether the drawing used by the defendants constituted an unauthorised reproduction of the plaintiff's copyrighted work or whether it was an independent so-called "double creation" without reference to the plaintiff's work. In particular, it was a question of the protectability of the original drawing and the assessment of the similarity of the two representations.
Decisive standards
- Section 2 (1) no. 4 UrhG, Section 97 (1) and (2) UrhG, Section 98 UrhG
Principles of the court decision
The OLG Frankfurt affirmed the copyright protection of the drawing and recognised an infringement by the defendants. Consequently, the plaintiff is entitled to injunctive relief, information and compensation claims against the defendants.
In the opinion of the court, the illustration in dispute constitutes a protectable work of fine art pursuant to Section 2 (1) No. 4 UrhG. Accordingly, even simple illustrations can be protected by copyright if they have a recognisable creative character that is an expression of the author's individual creative power. The illustration in dispute is characterised by original lines, the targeted combination of image and text as well as a provocative overall effect that clearly stands out from the general set of forms.
The scope of copyright protection covers not only exact replicas, but also designs that convey an essentially identical overall impression despite minor deviations in detail. This was the case with the defendant's contested design, as it only deviated from the original in marginal and insignificant details of the linework.
The court also rejected the argument of so-called double creation. This presupposes that two authors independently create a work that is identical in essential parts without having knowledge of the other work. In view of the large number of individual possibilities of expression, it is almost impossible for independent works to be largely identical - however, designs that are within the range of similarity are certainly possible. If the infringing form produced with an image editing programme only deviates from the original in details that are insignificant for the overall impression, particularly high requirements must be met to prove a double creation. In the present case, the court considered it impossible that the defendants had created their version without knowledge of the original due to the striking similarities in motif, style and text arrangement. Anyone claiming double creation would have to refute the impression that they had merely copied someone else's work - which the defendants had not managed to do.
Consequences for practice
This decision means that creative people and designers need to consider the possible copyright protection of even supposedly "simple" or humorous illustrations in their work and to document their own creative activities in order to be able to prove independent creation in the event of a dispute. Companies that use product designs also have a comprehensive obligation to check the rights of third parties.
Furthermore, the judgement makes it clear that courts apply strict standards to the credibility of the description of the creative process in disputes over double creation under copyright law and only accept concrete and comprehensible evidence. The hurdles for an alleged double creation are high, even in the case of widespread motifs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
