Austrian OGH Rejects Injunction in Sculptures Case

Apr 2, 2026 Benn-Ibler Rechtsanwälte

In a recent case, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was required to assess whether the sale of decorative figurines through an online platform constituted a modification of an artist’s sculptures amounting to copyright infringement, thus warranting prohibition by injunction. In the context of interim proceedings, it was sufficient to establish a prima facie case of the alleged infringement for this assessment.

The claimant, a Chinese artist, had been producing sculptures depicting human figures inclined forward with distinct facial expressions and showing a consistent design since 2002. The defendant marketed similar decorative figurines through an online store. The claimant considered this to be an unauthorized adaptation of his works and consequently sought an injunction to prevent reproduction, distribution, and online availability.

Artistic quality of the sculptures affirmed

The OGH confirmed the artistic merit of the sculptures, determining that they qualify as works under copyright law by virtue of being the product of individual intellectual creativity. The combination of stylised postures, enlarged heads, and distinct facial features was found to meet the threshold for originality. The ruling relied on the definition of a work under EU law, which requires that the creation reflect the personality of its author.

Criteria for adaptation and free use

To be considered relevant under copyright law, an adaptation must incorporate identifiable creative design elements from the original work. Inspiration alone or a comparable general impression does not suffice; it is essential that the distinctive features characterising the original are adopted in the adaptation.

The OGH determined that although the defendant’s figures share certain similarities in their general impression, they differ in critical design aspects including proportions, posture, and facial expressions. The interim proceedings did not sufficiently establish that copyright-protected elements had been specifically appropriated.

Interim injunction not granted

As no copyright infringement was established, the OGH rejected the claim that the claimant’s works had been adapted. Consequently, since there was no interference with copyright-protected positions, the application for an interim injunction was dismissed.

OGH, 4 Ob 166/25b, 20 February 2026