Copyright in Purim Costumes?

fawlty towers german

Different jurisdictions view copyright differently.

My good friend, the IPKAT recently published a piece discussing a case brought against a German supermarket chain by the heirs of Astrid Lindgren. The supermarket chain had an advertising campaign featuring Pippi Longstocking.  The word “pippi” is the Hebrew Childish equivalent of wee-wee, and is used as a synonym for urine, so the character, who is popular in Israel, has been renamed Bilby (probably derived from the Hebrew verb for muddle, referring to her odd socks, etc.  The BGH’s presiding judge Professor Bornkamm was cited in German media as having said that copyright law was not meant to prevent ‘…the ability to adopt another identity by way of fancy dress’ (see Der Spiegel Online, 18 July 2013).

I think that it makes sense to apply copyright against toy shops and costume vendors that provide costumes relating to well known characters. I would not apply the rules against kids in fancy dress, but that is a question of policy.

I find the case interesting, since although on the Jewish carnival festival, Purim, although some children dress up as characters from the Bible, particularly from the book of Esther, which is in the public domain, very many children dress up as characters from literature and films. So far, there has been little hard pursuing of IP rights against children in fancy dress, and despite the crime of passing oneself off as a soldier or policeman, the law hasn’t been rigorously upheld against the under tens on Purim. Maybe this will change?

Another German copyright case reported on the IPKAT concerned downloading Porn clips, which is probably the most frequent copyright infringement of otherwise upstanding law abiding, decent citizens.  Porn film company Malibu Media (Malibu) obtained court orders to establish the IP addresses of Germany based file-sharers of Malibu’s porn films with the allusive titles “flexible beauty” and “young passion”.  Then two of the defendants filed complaints arguing, inter alia, that Malibu Media had never proven that it was the owner of the copyright so that its claim should have failed.  The Regional Court of Munich found that Malibu’s name did not appear in the films so that it could not prove that it owned the copyright. Malibu had also failed to prove that its films has been distributed within Germany so that there was doubt whether they been released there and could fall under German copyright laws (Articles 94, 95, 128 (2), 126 (2) German Copyright Act, Laufbilderschutz). Furthermore, the court ruled that it was doubtful whether the content of the films could attract copyright protection given that the porn films did not appear to be a “personal intellectual creation” (see Article 2 (2) German Copyright Act), since the films merely showed “sexual intercourse in a primitive way”.

I think that the German judges are a little confused in both cases.
Re fancy dress, if a costume is sufficiently similar to that of a superhero or literary character that it is easily recognized by third parties, it is copyright infringement. If it used for promoting sales, it is a commercial use. A supermarket using a character with odd stockings and sticking out pigtails to increase sales is making commercial use of Pippi Longstocking, and infringing the rights of the Astrid Lingren estate.
As for porn, I don’t think Malibu was claiming that the choreography of the clips were copyright and that they could prevent another pornographer from making a confusingly similar production. I also don’t imagine that they were interested in a warning against trying moves at home.    However, if professional actors make a movie for entertainment purposes, that movie should be copyright protected, regardless of whether the actors are pretending to be asleep or are engaged in other activities performed in bed.
I think copyright applies in both cases, but would have a fair use exception for non-commercial usage.
For those of you unfamiliar with the Fawlty Towers episode with the German guests or with Pippi Longstocking, I’d suggest that you make up for this cultural illiteracy as soon as possible.

One Response to Copyright in Purim Costumes?

  1. Benny Attar says:

    You mention that the book of Esther is in the public domain. Yet every Bible I own has the sentence “all rights reserved -” on the first page. I’m still trying to figure out how I could infringe those rights.

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