On 18 December 2018, the Danish Supreme Court issued a very fundamental decision on the use of copyrighted works of applied art in advertising as a means of presenting food. The Supreme Court held that use of copyright protected design in marketing constitutes an infringement of copyright.
The background for the case is that the Danish retail chain COOP since 2012 has used the Danish World-famous ceramicist Kasper Würtz’s beautiful handmade tableware on packaging for foodstuffs including frozen edamame beans, tortilla chips, Chicken Red Curry dishes, and in supermarket leaflets, both on the front and inside the leaflets. The use of the table wear was in some places very prominent and elsewhere less prominent. Overall, there was documented use of images of the characteristic items in Denmark on over 2 million pieces of packaging and in more than 50 million leaflets over a period of 3 years.
Kasper Würtz asked COOP to stop the infringement back in 2012, but COOP continued the use to a large extent. Kasper Wurtz thus decided to sue COOP for copyright infringement.
Kasper Würtz table wear is protected by copyright
COOP contested that Würtz’s table wear was protected by copyright. They furthermore claimed that the use of copyrighted design as props in marketing of foodstuffs did not constitute an infringement of Würtz’s copyright, first of all because they claimed that a long-standing practice existed in the advertising industry, whereby retailers were allowed to use protected designs as props in marketing as long as the designs were not ‘well-known’ to the public. They further claimed that a de-minimis rule existed under Danish Copyright law which implies that purely trivial exploitation of a protected work does not constitute an infringement of copyright. This should be especially true in relation to table wear, since the use of the table wear was purely for functional reasons.
The Supreme Court first of all confirmed that Wurtz’s distinctive table wear was protected by copyright since it was a result of a creative process.
COOP’s use of protected table wear in advertising did not fall under an exemption in the law
Use of protected tableware in advertising is not legal because it is a common practice
The Supreme Court further rejected COOP’s arguments that the actual use was covered by an exemption in the law.
The Supreme Court firstly stated that it requires very strong evidence to establish a legal practice in the market that limits the rights of a designer in relation to the Copyright Act. All affected parties should have accepted the practice and there was no evidence that the copyright holders had accepted such a practice. COOP had not lifted the burden of proof, despite showing that it was customary to use a regime without asking for a law. The advertising Industry issues several declarations in support of the argument that it was a longstanding and common habit to use protected design as props in advertising without prior permission from the right holder.
There is a threshold for copyright infringement
Finally, for the first time, the Supreme Court ruled that a de minimis rule exists for copyright infringement, whereby completely subordinated use of a work in a commercial context does not constitute an infringement of copyright. In citing – for the first time in relation to applied art – the INFOSOC directive art. 5, 3, the Supreme Court ruled, that such a rule must be interpreted restrictively and not to the detriment of the designer.
The de minimis rule must be interpreted very narrowly
On the basis of these rules, the Supreme Court found that 16 out of 23 representations of Würtz’ ceramics on packaging and in advertising leaflets constituted infringement of Würtz’s copyright, while 7 were so subordinate that they did not constitute an infringement of Würtz’s rights.
When reviewing the representations found by the Supreme Court to constitute an infringement of Würtz’s rights, it is clear that even relatively minor representations constitute an infringement, which indicates that the de minimis rule must be interpreted very restrictively.
Denmark is famous for having one of the strictest and most protective copyright acts in the World when it comes to protection of design and applied art, but this decision takes the protection even further – to the benefit of creative people.
The decision marks an even higher protection of design under Copyright
Viewed in a larger perspective, the judgment clearly states that the protection of design is as high as that of other types of works – fine art, music and literature, and it is particularly important that the Supreme Court quotes the rules of the INFOSOC Directive in the field of design and applied art. This means that the Supreme Court acknowledges that design objects enjoy the same protection as other works despite the fact that in addition to being the result of a creative process, they also have a strong functional element.
It is likely that other countries within the EU, who also recognizes broad protection of copyright for applied art may follow this decision, which must be considered in line with CJEU practice.