https://www.bundesgerichtshof.de/Sha...ml?nn=10690868
Federal Court of Justice on copyright claims of a designer of Porsche AG for fairness compensation according to § 32a UrhG
Year of issue
2022
Publication date
04/07/2022
No. 045/2022
Judgment of 7. April 2022 - I ZR 222/20 - Porsche 911
The I., among other things, responsible for copyright. Civil Senate of the Federal Court of Justice has decided on copyright participation claims of the former head of the body construction department of Porsche AG on the economic success of the Porsche 911.
Facts: .
The defendant is Porsche AG. The plaintiff is the daughter of a head of department of the defendant's legal predecessor who died in 1966. As part of his work, he was involved in the development of the Porsche 356 vehicle model produced from 1950 and its successor model Porsche 911, which has been built since 1963. The extent of his participation in the design of these models is disputed between the parties.
Previous process history:
The plaintiff, as heir to her father and from assigned law, another heiress demands from the defendant in accordance with § 32a para. 1 sentence 1 UrhG from 1. January 2014 an appropriate participation in the proceeds from the sale of the 991 series of the Porsche 911 produced from 2011. She believes that essential design elements of the original models of the Porsche 356 and the Porsche 911 developed with the significant participation of her father have been adopted for the vehicles of this series.
The district court dismissed the action. The Higher Regional Court has rejected the plaintiff's appeal. With the appeal approved by the Court of Appeal, the plaintiff continues to pursue her application.
The decision of the Federal Court of Justice:
The Federal Court of Justice overturned the appeal judgment and referred the case back to the Higher Regional Court for a new hearing and decision.
However, the Higher Regional Court has rightly assumed that the plaintiff has no claims for further reasonable participation in accordance with § 32a para. 1 sentence 1 UrhG, insofar as it claims that the defendant used her father's copyrights on the Porsche 356 with the distribution of the 991 series of the Porsche 911. The design of the Porsche 356 is protected by copyright as a work of applied art (§ 2 para. 1 No. 4, para. 2 UrhG). The plaintiff has also proven that her father created this design and is therefore its author (§ 7 UrhG). With the distribution of the 991 series of the Porsche 911, however, the defendant does not have the right granted to her by the plaintiff's father within the framework of the employment relationship to exploit this work in physical form (§ 15 para. 1 UrhG). According to the findings of the Higher Regional Court, when comparing the overall impression of the two vehicle models, the elements justifying the copyright protection of the Porsche 356 can no longer be recognized in the design of the Porsche 911. The defendant has therefore not entered into the exclusive right of the author to reproduce with the production and distribution of the Porsche 911 (§ 16 para. 1 UrhG) and dissemination (§ 17 para. 1 UrhG) of the Porsche 356 intervened. A claim for further reasonable participation is therefore excluded without it being important whether the design of the 991 series of the Porsche 911 is also a copyrighted work and thus the conditions for free use within the meaning of § 24 para. 1 UrhG aF/§ 23 para. 1 sentence 2 UrhG nF are available.
On the other hand, the assumption of the Higher Regional Court that the plaintiff was not entitled to any claims for further reasonable participation, insofar as she invoked that the defendant had used her father's copyrights copyrights to the original model of the Porsche 911 with the distribution of the 991 series of the Porsche 911, on the other hand, does not stand up to the legal review on a decisive point. The Higher Regional Court rejected claims of the plaintiff on the grounds that the plaintiff had not proven that her father had created the external design of the body of the Porsche 911. In the appeal proceedings, however, the plaintiff had named her husband as a witness that her father had made it clear to him during a visit to his workplace that the Porsche 911 and its body were "his car, his design." The Higher Regional Court should have dealt with this offer of evidence, because the testimony could provide at least an indication of the authorship of the plaintiff's father. The plaintiff only submitted this offer of evidence after the expiry of the grounds for appeal. However, the Higher Regional Court did not deal with whether the plaintiff is therefore excluded from taking evidence. This question can only be decided by the Court of Appeal and not by the Court of Appeal.
Pre-instances:
LG Stuttgart - Judgment of 26. July 2018 - 17 O 1324/17
OLG Stuttgart - Judgment of 20. November 2020 - 5 U 125/19
The relevant regulations are:
§ 2 para. 1 No. 4, para. 2 UrhG
(1) Protected works of literature, science and art include in particular: ...
4. Works of the visual arts including works of architecture and applied art and designs of such works; ...
(2) Works within the meaning of this law are only personal spiritual creations.
§ 7 UrhG
The author is the creator of the work.
§ 15 para. 1 No. 1 and 2 UrhG
(1) The author has the exclusive right to exploit his work in physical form; the right includes in particular
1. the reproduction right (§ 16),
2. the distribution right (§ 17), ...
§ 16 para. 1 UrhG
(1) The reproduction right is the right to produce copies of the work, whether temporary or permanent, in what procedure and in what number.
§ 17 para. 1 UrhG
(1) The distribution right is the right to offer or place the market the original or copies of the work to the public.
§ 23 para. 1 UrhG nF
(1) Arrangements or other transformations of a work, in particular a melody, may only be published or exploited with the consent of the author. If the newly created work maintains a sufficient distance from the used work, there is no processing or transformation within the meaning of sentence 1.
§ 24 para. 1 UrhG aF
An independent work created in free use of someone else's work may be published and exploited without the consent of the author of the work used.
§ 32a para. 1 sentence 1 UrhG
(1) If the author has granted another a right of use on terms that lead to the agreed consideration proving disproportionately low compared to the income and advantages from the use of the work, taking into account the entire relationship of the author with the other, the other is obliged, at the request of the author, to consent to an amendment to the contract, which grants the author further
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