Report on the IMKR Lecture “Copyright Protection of Literary Characters” by Assistant Professor Gomille
On January 9, 2019, Prof. Rösler welcomed Jun.-Prof. Dr. Christian Gomille, interim holder of the Chair of Civil Law and Business Law, in particular Intellectual Property Law and Media Law, at the University of Siegen, to the first IMKR lecture of 2019. Gomille began by highlighting the potential for legal and economic conflicts arising from commercialization. This includes the unauthorized marketing of well-known literary characters – for example, through video games or merchandising products. To resolve the conflicts arising from commercialization, copyright law provides, on the one hand, dependent protection for the characters as integral parts of the respective narrative and, on the other hand, so-called “isolated character protection.”
1. Protection is considered dependent when it is granted to literary characters directly through the provisions of the Copyright Act, in particular §§ 12 et seq., 15 et seq. UrhG. While these provisions generally protect the author’s personal intellectual creation as a complete work (§§ 1, 2(2) UrhG), for example against unauthorized reproduction and distribution (§§ 16 et seq. UrhG), distortion (§ 14 UrhG), or adaptation (§ 23 UrhG) – where the term “adaptation” specifically encompasses the adaptation of the story to other forms of use, such as a film adaptation –, the narrative as a complete work necessarily also includes the characters appearing therein as its essential elements. Therefore, interventions in individual characters – such as their adaptation or distortion – could already constitute an infringement on the narrative as a whole. In such a case, dependent protection of the character as an integral part of the narrative is warranted.
2. If one were to limit protection to the dependent protection of characters, however, significant gaps in protection would remain in cases where characters are removed from the context of their original story and marketed in a different context. This would contradict the protective purpose of copyright law, which is why case law has developed what is known as “isolated character protection.” This was established for the graphically defined character (BGHZ 122, 53 – Alcolix), whereby the Federal Court of Justice (BGH) first recognized the individual graphic depiction as a protected work of visual art within the meaning of § 2(1) No. 4 of the Copyright Act (UrhG), then extended this protection to the external characteristics underlying all graphic depictions, and finally even extended it to the character of the figure itself, in order to close gaps in protection when the artistic medium is changed (use of a graphically defined character in novels).
In addition, however, the Federal Court of Justice (BGH) has also developed a form of isolated protection for characters defined purely in literary works, applying strict standards in this regard: Only a distinctive combination of physical and character traits can establish independent copyright protection for a literary character (BGH GRUR 2014, 258 – Pippi-Langstrumpf-Kostüm). The BGH has also developed independent copyright protection based on similar principles for other essential elements of a narrative, such as the fictional world created by the author (BGHZ 141, 267 – Laras Tochter).
3. Finally, Gomille explained the limits of character protection: It is limited to the characteristics that constitute the individual level of creativity. Therefore, forms of expression in the public domain that a character shares with other similar characters, or the abstract idea behind a story, are not protected. § 24(1) UrhG even permits, within certain limits, the free use of characteristics that specifically define the character. Parody, in particular, enjoys special protection, which is already constitutionally mandated by Article 5 of the German Basic Law (GG) (BGHZ 211, 309 – auf fett getrimmt). In the ensuing discussion, Prof. Rösler raised the question of whether copyright law might need reform. He asked whether, given the commercial significance of character protection, the time limit on copyright (§ 64 UrhG) was still justifiable when compared to industrial property rights (e.g., trademark rights), which are not subject to such a limitation. Gomille replied that the legislature has broad discretion in this matter. At present, however, it must be taken into account that the protection of the author’s personality is much more pronounced in copyright law than, in particular, in industrial property rights. The focus of legal protection is on the author and not so much on the work as a commercially exploitable asset.
The term of protection under § 64 of the German Copyright Act (UrhG) (“Copyright expires seventy years after the author’s death”) is also closely linked to this concept. It ensures that protection extends throughout the presumed life expectancy of the author’s contemporaries who associate the work with him or her. Accordingly, aligning the term of copyright protection with, for example, the terms of protection under trademark or patent law would simultaneously constitute an encroachment on the overall concept of copyright law, which is designed to protect personal rights. In contrast, adjusting the term of protection under § 64 UrhG to reflect the steadily increasing human life expectancy – for example, through indexation – would pose no problem.
