An interesting recent decision from the Supreme Court in Austria concerned illustrations that were amended to serve as animated mascots, but the redesign was never paid for. Christian Schumacher of the MARQUES Copyright Team reports for Class 99.

The story of the animated chocolate mascots

In 2016, the owner of a chocolate museum with an adjacent shop obtained the exclusive rights (including making of derivative works) from an illustration and animation studio to the pictured illustrations, which were intended to be used as mascots called Choco and Coco (see top picture).

Later on the director of the studio was asked to create a proposal for figures, which could be animated, which he delivered (see picture below).

As he did not hear anymore about this project and assumed it was not followed up, he waived the agreed fee. However, the proposal was used as a template for a 3D mascot used prominently for the chocolate museum, as template for plush figures sold there and on various chocolate products.

Derivative works?

The studio (which asserted the rights in the proposals of its director) sued for copyright infringement. The Austrian courts up to the Austrian Supreme Court had to decide whether the proposals qualified for copyright protection as derivative works.

The Austrian Supreme court affirmed, considering that in particular the redesign of the eyes, in connection with the other changes, made the figures appear more cheerful.

This amounted to creative design elements surpassing a mere mechanical simplification (and was not just used for animation purposes by the chocolate museum), which departed not insignificantly from the initial design and therefore met the threshold for copyright protection as a derivative work.

Christian Schumacher is a partner of Schönherr Attorneys at Law, Austria, and a member of the MARQUES Copyright Team. Please contact him directly for further information. The illustrations are taken from the judgment published by the Austrian Supreme Court.