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Commercial Video trailer featuring iconic works of art of Salvador Dalí together with Berlin sites held as copyright infringement

On January 21, 2016, the German Federal Supreme Court has rejected a complaint against the refusal of leave to appeal by the Munich Appeal Court confirming on December 11, 2014 a copyright infringement,  as before the Munich District Court, by Dali Berlin Ausstellungsbetriebs-GmbH. The latter runs a commercial permanent exhibition hall in Berlin Mitte, showing mainly graphical works and multiple sculpture editions of Salvador Dalí. Plaintiff was the Foundation Gala-Salvador Dalí being entrusted by the universal heir of the famous artist, the Spanish State, i.a. with the protection and defense of the immaterial rights of Dalí, in particular his copyrights, image, trademark and personality rights.
The Berlin exhibitor had commissioned and shown on its website as a trailer an animated video clip displaying some of the most iconic works of art of Dalí (not shown in the exhibition), such as the melting watch, the stork-legged elephants, the minotaure, the black torero etc. before the background of and in interaction with famous Berlin sites, such as the Brandenburg Gate, the Memorial Church, the Television Tower of East Berlin or the Reichstag.
The Munich Appeal court assessed and rejected the defense that the clip represented a new work of art in which the Dalinian works which had been taken over in a similar and obvious manner had faded away or formed at least part of a critical or artistic dialogue with the own work, but rather constituted a mere marketing means for the exhibition of the defendant. For this reason, a consent of the author or the rights owner would have been mandatory. Another defense, that the “citation” of the famous works had to be permitted because the new work only represented an “homage” and tribute to Salvador Dalí, failed as well.
A second claim for copyright infringement was also upheld by the Federal Supreme Court confirming the prior findings of the Munich Appeal Court, regarding a silver ring bearing the original title “Ojo del tiempo” – the “Eye of Time” -, also an iconic jewel created 1949 by Dalí, namely a diamond brooch in form of an eye, where the pupil represents the dial of an (operational) watch.
The Defendant Dali Berlin had commercialized i.a. a silver ring, imitating the eye with a pupil in form of a dial.
The fact that type and material of jewelry were different and the watch not being operational were not relevant, as the inner distance to the prior work had not been kept. Also in vain the defendant cited some similar works of watches in form of an eye, as they could not demonstrate that these works had preexisted before the original “Eye of Time”.
The confirmed judgments draw the limits for commercial exhibitors of works of art as to their marketing ambitions and endeavor to commercialize works of art without prior authorization, i.a. by merchandising articles or other means of processing in particular where works of art are used which are not even shown in the exhibition in order to attract higher attention of the public.


Dorothee Altenburg

Dr. Dorothee Altenburg


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