A “work” within the meaning of copyright law has to display a certain degree of singularity, originality or individuality, something which is also called the “threshold of originality”. But how original is a simple, isolated line from a comedy sketch, in which a character states that “it used to be better in the good old days”—albeit in a slightly different wording, referring to the average amount of tinsel hung on a typical German Christmas tree? “Not original enough”, was Munich Higher Regional Court’s verdict in 2019, allowing T-shirts bearing the quotation to be produced without requiring a licence from the author’s heirs, nor any payment of royalties.
The German comedian simply known as Loriot spent a working lifetime making fun of Germany’s stuffy petite bourgeoisie, but in such a sympathetic way that he became a much-loved national institution. In a well-known and probably still often viewed comedy sketch, Zimmerverwüstung [Destruction of a room] (1976), for instance, a sales representative pays a call to a mansion; he is shown into the parlour and asked to wait. Being a fussy person, he attempts to straighten out a picture hung on the wall. He fails, and sets off a destructive chain reaction in his attempt to put things right. When the maid reenters the parlour, he points to the completely devastated room and utters the only words of the sketch: “Das Bild hängt schief” (“the picture is hung crookedly”), which soon became a turn of phrase in German.
Another famous quotation is “Früher war mehr Lametta!” (“there used to be more tinsel in the good old days!”), from the sketch Weihnachten bei Hoppenstedts [Christmas Eve at the Hoppenstedts] (1978). The words are uttered by Grandpa Hoppenstedt, who likes Prussian march music, receiving his presents quickly and without too much festive rigmarole, and is obviously unimpressed by society’s progress. “Lametta” are strips of shiny foil that are traditionally draped over the branches of German Christmas trees to give them a festive sparkle; tinsel not attached to thread, is Wikipedia’s definition. Today the phrase “Früher war mehr Lametta!” is simply used as a humorous way of saying “things aren’t what they used to be”. Loriot, actually Bernhard-Viktor Christoph-Carl von Bülow, died in 2011.
The case under discussion was based on the fact that a company had been selling T-shirts displaying the words “Früher war mehr Lametta” via their online shop. Loriot’s heirs sent the T-shirt merchant a cease-and-desist letter (Abmahnung), based on their copyright to the catch phrase, and asked the merchant to sign a cease-and-desist declaration with penalty clause (strafbewehrte Unterlassungserklärung). The merchant refused to sign such a declaration, but said in a non-committal way that he would stop selling “certain [T-shirt] designs”. Nonetheless, very soon the “Früher war mehr Lametta” T-shirts were back on sale again, as the claimants said they were able to ascertain by browsing the online shop. Loriot’s heirs (his two daughters) then decided to initiate action for a provisional injunction with Munich Regional Court (Landgericht München).
When Munich Regional Court refused to grant an injunction, the claimants filed an appeal against the decision with Munich Higher Regional Court (Oberlandesgericht München). (The appeal was in the form of a “complaint subject to a time limit” of two to four weeks, called a sofortige Beschwerde, which is one of three legal remedies, or means of appeal, available in German civil procedure). Munich Higher Regional Court, however, sided with the lower court (order of Munich Higher Regional Court, 14 August 2019, case number: 6 W 927/19). A few days before Christmas Eve, with good timing, the court issued a press release on the outcome of the case.
Munich Higher Regional Court ruled that the combination of words—or phrase or expression (Wortfolge)—“Früher war mehr Lametta!” did not meet the requirements laid down by section 2 of the German Act on Copyright and Related Rights (Copyright Act) [Gesetz über Urheberrecht und verwandte Schutzrechte]. The mere words in this particular order did not constitute a “literary work” within the meaning of number 1 of subsection 1 of section 2 of the Copyright Act. In contrast, the claimants stated in their statement of claim (Antragsschrift) that “even though the phrase is rather short, it is still an imaginative and apt way of putting the notion in a nutshell that everything used to be better in the good old days” (die Wortfolge bringe trotz ihrer Kürze die Aussage phantasievoll und treffend auf den Punkt, dass früher alles besser gewesen sei).
Munich Higher Regional Court, again, did not agree. The expression was only distinctive and original when it was embedded in the sketch, and its distinctiveness and originality (Besonderheit und Originalität) only stemmed from the comedy of the situation depicted (durch die Einbettung in den Sketch und die Situationskomik). If one ignored the circumstances of its utterance and the fact that the expression had been used by the well-known and distinguished artist Loriot, then the sentence was rather commonplace and trivial (eher alltäglich und belanglos): it either simply stated that one used to use more tinsel (lametta) in former times, or, if one interpreted the word “lametta” as a metaphor, that in times gone by there had been more decoration, splendour, festive spirit, or the like.
The claimants also argued that the expression “Früher war mehr Lametta!” (literally: “in former times there was more tinsel”) also met the requirements for originality at the very least because it displayed “grammatical originality” (grammatikalische Originalität). The expression was not used in this way in everyday speech, it was (grammatically) incorrect and, strictly speaking, it did not make sense (finde nicht alltägliche Verwendung, sei nicht korrekt und ergebe an sich keinen Sinn). The combination of words in dispute did not follow the rules of semantics: the verb “to be” was combined with the comparative “more” and with a fairly random noun.
In dismissing this line of argument, the appeal court opined that ordinary and everyday language did not always follow the rules of semantics either, therefore there was nothing particularly original about deviating (abweichen) from such rules. The fact that the expression in dispute stood in contrast to grammatically correct versions of the expression, e.g. “Früher gab es mehr Lametta” (“there used to be [instead of ‘there was’] more tinsel in former times”), did not confer the “required characteristics of a ‘work’” (geforderte Werkqualität) on the contested phrase.
In their statement of claim, the claimants conceded that the interpretation of the expression in dispute hinged on its basic meaning, i.e. that “things aren’t what they used to be” (“früher war alles besser”). But the claimants went on to state in their pleading that the expression was characterised by originality because it exposed the notion that “everything was better in the good old days” to ridicule (die Ansicht, früher sei alles besser gewesen, werde der Lächerlichkeit preisgegeben).
Addtionally, the claimants stated, since the grammar was wrong and the statement was ridiculous, this simple-sounding expression robbed the general notion of “things not being what they used to be” of all authority and exposed the notion for what it was: a criticism of contemporary times that was devoid of all substance (die Ansicht werde ihrer Autorität völlig beraubt, weil die scheinbare Gegenwartskritik als bloße, inhaltsleere Kritik entlarvt werde).
However, the court termed this kind of approach an “overinterpretation” (Überinterpretation). For such a generalised sociocritical interpretation of the expression to hold, an interpretation still had to be convincing if the expression was analysed out of its original context within the Loriot sketch (eine “Überinterpretation” der streitgegenständlichen Wortfolge, losgelöst von dem Sketch, in den sie eingebettet ist). The appeal court sided with the lower court in ruling, in effect, that the expression itself—without context—did not provide a basis for such a far-reaching interpretation.
As no complaint on points of law (Rechtsbeschwerde) was possible, the means of appeal had been exhausted and the order issued was final and binding. Since semantic and grammatical arguments failed to impress Munich Higher Regional Court, it seems that, for the claimaints, things (i.e. royalty payments) just might not be what they used to be.
Edward Viesel
Please note: in order to improve readability of this article, when quoting from German court decisions in the original German, I have often shortened phrases or adapted them to the present English-language text without indicating such changes. Please refer to the original source provided as a link if in doubt.