The drawing Robber Rathausplatz (city hall place) is an infringement of the copyright of the drawing Robber Hotzenplotz.
The publisher, which holds the rights to the children’s book series ‘The Robber Hotzenplotz’, has filed a lawsuit.
The defendant political party and its state party leader were criticising an Austrian mayor and his party as part of a political campaign under the slogan ‘Räuber Rathausplatz’ (Town Hall Robber). They also used a drawing of the mayor standing behind a fence and wearing a comparable ‘robber’s hat’.
The court of appeal issued a temporary injunction prohibiting the defendants from using the illustration on the book cover because it constituted an unlawful infringement of the plaintiff’s copyright.
In its decision 4 Ob 97/24d of 27 August 2024, the Austrian Supreme Court dismissed an appeal by the defendant political party because the Higher Regional Court’s assessment was within the framework of the previous case law of the Austrian Supreme Court and the European Court of Justice.
The free use of a third party’s work for one’s own work (Section 5 (2) UrHG) requires that the third party’s work serves only as a suggestion and is completely relegated to the background in the newly created work. However, the Higher Regional Court found that the defendants had not merely taken up the robber’s basic idea, but had adopted the essential parts of the original, namely the way he looks over a fence while wearing a specially designed hat.
The fact that the Higher Regional Court denied a justification as a ‘political parody’ in an individual case was also considered justifiable (Section 42f (2) UrHG; Art 5 (3) (k) Info-RL; Art 17 (7) DSM-RL). According to the case law of the ECJ, when it comes to the free use of works for ‘parodies’, a fair balance must be struck in each specific case between the interests and rights of the author and the user’s freedom of expression. Therefore, the Higher Regional Court’s weighing of the interest of the owner of rights in a children’s book in not being associated with a political campaign (of whatever content), in which he never participated, against the defendant’s interest in use cannot be objected to. The court’s conclusion that the defendants could have asserted their point of view and the stylistic device of parody without interfering with the copyrights, and that the recourse to ‘Räuber Hotzenplotz’ serves less to convey a political message than to exploit its popularity and is therefore inadmissible, is within the discretion of the court of appeal in individual cases.