The Federal Court of Justice clarifies the question of when a work of art is an insignificant accessory under copyright law

German copyright laws allow for the using of an artist’s work of art without his permission if it merely represents an insignificant accessory within another work. The law, however, remains silent on when the prerequisites for an insignificant accessory are satisfied. The German Federal Court of Justice has now made it clear that a work of art is insignificant in relation to the primary object if the work of art can be left out or replaced without the average beholder noticing or without the overall effect of the primary object being influenced in any way whatsoever. Furthermore, a work of art is not to be regarded as an insignificant accessory as soon as it is obviously incorporated in the primary object to form the style or atmosphere or if it highlights a certain effect or statement, fulfils a dramaturgical purpose or is otherwise characteristic such as for a film or theatre scene.

The case at hand was about the use of a painting in the defendant’s furniture catalogue for which the artist had not granted permission. The parties had agreed beforehand to exhibit several of the claimant’s works of art which also included the painting in question. Later on, the claimant noticed that a photograph had been published in the defendant’s catalogue on which both the defendant’s furniture presented in the sales exhibition and his painting could be seen. The claimant filed suit against the furniture company with regard to the presentation of the painting in their catalogue. The Federal Court of Justice overturned the decisions in the courts of lower instance that were of the opinion that the painting in the catalogue photograph was a matter of an insignificant accessory. The Federal Court of Justice ascertained that the significance of the work of art from the view of an objective average beholder was to be determined under due consideration of all circumstances of the respective case. A degree of insignificance in this sense is to be assumed if the work of art could be left out or replaced without the average beholder noticing or without the overall effect of the primary object being influenced in any way whatsoever. The accessory must be of subordinate significance in relation to the primary object of reproduction. Such a subordinate significance can no longer be routinely assigned to the co-used object as soon as it is obviously incorporated in the actual object of use to form the style or atmosphere or to highlight a certain effect or statement, fulfils a dramaturgical purpose or is otherwise characteristic. Whether the painting in dispute is actually an insignificant accessory was left open by the Federal Court of Justice; the matter was referred back to the Court of Appeal.

The decision is of far-reaching importance for the embedding of works of art in other works, such as in the background for photographs, stages or film scenes. With its decision, the Federal Court of Justice has strengthened the rights of visual artists.