Newspaper must tolerate reprinting of articles in a book

The defendant, former director of the Eisenhüttenstadt Local Court, wrote four books after his retirement. In the first three books he presented his family history, his personal history and the history of the rebuilding of the judiciary after the Wende and its "rebuilding helpers" from the West. In 2009, the last book in the series for the time being was published under the title "Blooming Landscapes". In this book, which deals with political and social phenomena in his court district and in this context also critically with the role of the press, the defendant included newspaper articles and photographs which had appeared in the Märkische Oderzeitung (MOZ) during the years of his judicial activity.

The MOZ saw the reprinting of its articles, for which it had not given its consent, as an infringement of its copyright. It therefore brought an action before the Potsdam Regional Court for injunctive relief against the reprinting, which in its view was prohibited. In addition, she filed further applications to prepare the assertion of damages she had suffered as a result of the unauthorised publication.

The Potsdam Regional Court, among others, granted the injunction. The defendant appealed against this decision. The Brandenburg Higher Regional Court (Brandenburgisches Oberlandesgericht), in a judgement announced today, amended the judgement of the Regional Court and dismissed the action.

In its reasoning, the 6th Civil Senate of the Higher Regional Court stated that the defendant had indeed interfered with the copyright-protected position of the MOZ. However, this encroachment was protected by the freedom of art enshrined in Article 5(3) of the Basic Law. With his book "Blühende Landschaften" (Blooming Landscapes), the defendant had created a literary work, thus a work of art. In presenting it, he had used an artistic technique, namely literary collage or montage, of texts and illustrative objects that were different in content and style. He had used the articles and photographs to make it possible to experience the political and social atmosphere in the context of the events depicted. In such a case, copyright had to be interpreted and applied in an art-specific manner, as the Federal Constitutional Court had already ruled. Taking into account the case-law of the Constitutional Court, the defendant had been allowed to use the newspaper articles and photographs in dispute in his book.

The encroachment on the copyright of the MOZ was only of minor importance. The articles and photographs concerned daily events from years far in the past. Their economic value was for the most part exhausted by the publication at that time. The defendant had also not had to obtain the permission of the MOZ to include the articles and photographs in his book. The defendant's artistic freedom should not be restricted by the fact that he was limited in the choice of means he considered necessary to obtain the intended expression by being dependent on the plaintiff's consent.

The judgement is not yet final. The court has allowed an appeal to the Federal Supreme Court.

Judgment of the Brandenburg Higher Regional Court of 9.11.2010 - Ref.: 6 U 14/10


Source: Press release of the Brandenburg Higher Regional Court


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)