UrhG: Political Party used a drawing of ‘The Robber Hotzenplotz’

Nov 29, 2024 Benn-Ibler Rechtsanwälte

The free use of a work presupposes that the work of another person is not taken over in an identical or modified form, not even as a model or working document, but only as a suggestion for one’s own work.

The plaintiff publisher holds various rights in the children’s book series ‘The Robber Hotzenplotz’ (Der Räuber Hotzenplotz). The covers of those books show the character, the robber Hotzenplotz wearing a large black hat with a turned-up brim, a red hat band, and a large feather, standing behind a fence.

The defendants, a political party and its regional chairman, criticised an Austrian mayor and his party as part of a political campaign under the slogan ‘Räuber Rathausplatz’ (Town Hall Square Robbers). They also used a drawing of the mayor standing behind a fence and wearing a similar robber’s hat.

The appellate court issued an injunction prohibiting the defendants from using the graphic representation of the book’s cover, on the grounds that it infringed the plaintiff’s copyright. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dismissed the defendants’ appeal.

Contrary to the defendant’s view, the publication was not an independent new creation within the meaning of Section 5(2) of the Austrian Copyright Act (Urhebergesetz, hereinafter UrhG). It is characteristic of free use that, despite the connection to another work, there is another independent work in relation to which the underlying work completely recedes into the background.

The objection that the work has been used for the purpose of parody cannot justify copyright infringement. According to the case law of the Court of Justice of the European Union, the free use of works for the purpose of ‘parody’ must strike a fair balance in each individual case between the interests and rights of the author and the freedom of expression of the user. Using the Räuber Hotzenplotz did not serve to convey a political message so much as to exploit its popularity for that purpose.

OGH 4 Ob 97/24d (27 August 2024)