The defendant operates retail markets. In order to advertise its carnival costumes, it used photographs of a girl of about five and a young woman dressed as Pippi Longstocking in sales brochures in January 2010. Both the girl and the young woman were wearing a red wig with pigtails sticking out and a T-shirt and stockings with a red and green striped pattern.
The photographs were printed nationwide in sales brochures, on pre-announcement posters in the chain stores as well as in newspaper advertisements and were available on the defendant's website. In addition, the images were attached to the respective costume sets, of which the defendant sold a total of more than 15,000.
The plaintiff, who claims to be the owner of the copyright in the artistic works of Astrid Lindgren, is of the opinion that the defendant infringed the copyright in the literary character "Pippi Longstocking" with its advertising. This character in itself enjoys copyright protection. The defendant had borrowed from this character in the illustrations used. For this reason, the defendant was entitled to damages in the amount of a notional licence fee of €50,000.
The Regional Court sentenced the defendant as requested. The defendant's appeal against this was unsuccessful. According to the court of appeal, the plaintiff was entitled to the asserted claim under Section 97 (2) UrhG. The character "Pippi Longstocking" enjoyed copyright protection as a linguistic work within the meaning of § 2.1 no. 1 UrhG. It was a unique character which, due to its characteristics and external features, was clearly distinguishable from the characters known up to that time. The illustrations used by the defendant to advertise the costumes were non-free adaptations of the character "Pippi Longstocking" within the meaning of § 23 UrhG because, when viewed as a whole, the creative features of "Pippi Longstocking" were clearly visible and it was not a new and independent work. This was a prerequisite for free use within the meaning of § 24.1 UrhG. In its appeal, which was allowed by the Court of Appeal and which the plaintiff sought to have dismissed, the defendant continued to pursue its motion to dismiss the action.
On appeal by the defendant, the Federal Court of Justice reversed the Court of Appeal and dismissed the action insofar as it was based on claims under copyright law. With regard to alternatively asserted claims under competition law, on which the Court of Appeal had not yet ruled, the Federal Court of Justice referred the case back to the Court of Appeal for a new hearing and decision.
The Federal Court of Justice has held that the character of "Pippi Longstocking" created by Astrid Lindgren in her children's books enjoys copyright protection as a linguistic work within the meaning of Section 2(1) No. 1 UrhG. A prerequisite for the protection of a fictional character is that the author gives this character an unmistakable personality by combining distinctive character traits and special external features. This is the case with the character of "Pippi Longstocking". Already the external features stand out (carrot-coloured hair braided into two protruding plaits, a nose full of freckles shaped like a small potato, wide laughing mouth, yellow dress, blue trousers underneath, a black and a striped stocking, shoes that are far too big). In addition, there are very special personality traits: Despite difficult family circumstances, Pippi Longstocking is always cheerful; she is characterised by a pronounced fearlessness and irreverence, coupled with imagination and wordplay, and possesses superhuman powers.
However, in the case in dispute there is no infringement of copyright. It is true that the viewer recognises that the figures in the defendant's advertisement are supposed to be Pippi Longstocking. However, this does not change the fact that these figures used in the advertisement adopt only a few features that are decisive for the copyright protection of the literary figure of Pippi Longstocking. The protection of a literary character as a linguistic work comes into consideration if this character is described by a distinctive combination of external features, character traits, abilities and typical behaviour. The copyright in such a character is not infringed merely by the fact that only a few external features are adopted which, taken in isolation, could not justify copyright protection. According to the findings of the Court of Appeal, the defendant merely adopted the colour and shape of the hair, the freckles and - in general - the clothing style of Pippi Longstocking for the figures in the impugned illustrations. These elements may be sufficient to arouse associations with Pippi Longstocking and to recognise that it is supposed to be a Pippi Longstocking costume. However, they are not sufficient to establish copyright protection for the character of Pippi Longstocking and therefore do not participate in the protection of the literary character in isolation.
Judgment of the Federal Court of Justice of 17 July 2013 - I ZR 52/12 - Pippi Longstocking
Lower courts:
LG Köln - Judgment of 10 August 2011 - 28 O 117/11 (ZUM 2011, 871)
OLG Cologne - Judgment of 24 February 2012 - 6 U 176/11 (ZUM-RD 2012, 256)
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
