On December 18, 2018, the Supreme Court issued a very principled decision on the use of copyrighted art as a directive in the marketing of food.
The reason for the case is that since 2012, COOP has used Kasper Würtz service, bowls and plates as part of packages containing, among other things, frozen edamame beans, tortilla chips, Chicken red Curry dishes and partly in household-distributed advertising newspapers, both on the front pages and inside the magazines. . The rendering of the service was very prominent in some places and in other places less prominent. In total, there was documented use of over 2 million packaging and more than 50 million reprints in ad newspapers.
Kasper Würtz prosecuted the use, but COOP continued to use it to a large extent, which is why Kasper Würtz considered it necessary to sue.
During the case, COOP disputed that Würtz ceramics were protected by copyright. In the alternative, they argued that the use as a rule did not constitute a violation of Würtz’s copyright, in that there was to be a long-standing practice in the advertising and the grocery industry for such a use being legal and partly for the use of the unlawful de minimis rule which implies that mere negligent exploitation of a work does not constitute copyright infringement.
Würtz copyrighted ceramics
The Supreme Court ruled in principle that Wurtz’s peculiar pottery was protected by copyright. The Supreme Court thus upheld the Danish Maritime and Commercial Court’s decision that the service’s combination of form and expression was the result of a creative effort.
No custom for legal use of directing
At the same time, the Supreme Court rejected COOP’s arguments that use as a directive should be legal.
Thus, the Supreme Court ruled, first, that it requires extremely strong evidence to establish that there is a custom of law that restricts a designer’s rights in relation to copyright law. The burden of proof had not been lifted by the COOP despite showing that it was customary to use directing without asking for a law.
The Supreme Court holds that a de minimis rule applies
Finally, for the first time ever, the Supreme Court ruled that a trespass rule for copyright infringement exists, whereby the mere use of a work in a commercial context does not constitute copyright infringement. However, such a rule must be interpreted restrictively and not to the detriment of the designer. In this connection, the Supreme Court cited, for the first time, the Infosoc Directive in the field of applied arts.
On the basis of these rules, the Supreme Court found that 16 out of 13 reproductions of Würtz pottery on packaging and in advertising magazines constituted a violation of Würtz copyright, while 7 reproductions were so minor that they did not constitute a violation of Würtz rights. When reviewing the reproductions which the Supreme Court found to be a violation of Würtz’s rights, it can be found that even relatively minor representations constitute a violation, which shows that the de minimis rule must be interpreted very restrictively.
Important judgment for the protection of applied arts
From a wider perspective, the judgment marks a juxtaposition of applied art with the other protected works, and it is especially important that the Supreme Court cites the rules of the Infosoc Directive in relation to applied art. This means that the Supreme Court recognizes that art objects enjoy the same protection as other works, despite the fact that in addition to reproducing the result of a creative process, they also have a strong functional element. It will be interesting to see if the Supreme Court is also prepared to conclude that works of applied art also generally enjoy the same broad protection in relation to copying as other types of works. Something could indicate that.