Clothing store Peek & Cloppenburg included a distinctive Le Corbusier chair in its window display. It wasn’t looking to sell them even, so was shocked to be sued by the exclusive manufacturer for copyright infringement. Carla Basso has the low-down on the bizarre case.
Topic: Intellectual property
Who: Peek & Cloppenburg KG v Cassina SpA
Where: European Court of Justice
When: 17 January 2008
Law stated as at: 28 February 2008
In a reference from the Federal Court of Justice in Germany, the European Court of Justice (the "ECJ") has been asked for guidance on the interpretation of Article 4(1) of "Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society" (the "Copyright Directive"). The Advocate General has given an opinion on the case prior to the ECJ making its decision. Although Advocate General's opinions are not binding, they do influence the ECJ's approach to a case, and therefore this opinion indicates the way this case is likely to be finally decided by the ECJ.
German clothing store, Peek & Cloppenburg ("P&C"), used furniture made from Le Corbusier designs in one of its window displays, and made them available for temporary use in rest areas for tired customers. They had bought the furniture from an Italian manufacturer "Dimensione" (and at the time of manufacture, the chairs were not copyright protected in Italy). Cassina, an Italian furniture manufacturer, had the exclusive licence to manufacture furniture designed by Charles Edouard Jeanneret (Le Corbusier) in Germany, and they sued P & C for copyright infringement, claiming that P&C had infringed Cassina's distribution right.
Questions referred to the ECJ
The ECJ was asked whether this use constituted a "distribution to the public by sale or otherwise" within the meaning of Article 4(1) of the Copyright Directive, specifically:
"1(a) Can it be assumed that there is a distribution to the public otherwise than by sale, within the meaning of Article 4(1) of the Copyright Directive, in the case where it is made possible for third parties to make use of items of copyright protected works without the grant of user involving a transfer of de facto power to dispose of those items?
(b) Is there a distribution under Article 4(1) of the Copyright Directive also in the case in which items of copyright protected works are shown publicly without the possibility of using those items being granted to third parties?
2. If the answers are in the affirmative, can the protection accorded to the free movement of goods preclude, in the abovementioned cases, exercise of the distribution right if the items presented are not under copyright protection in the Member State in which they were manufactured and placed on the market?"
Advocate General's Opinion
On the question of whether there was a distribution to the public where copyright protected furniture was made available for temporary use (with no right for the user to sell it on to third parties) the Attorney General said no. Although Cassina had argued Article 4(1) was broad and covered "any form of distribution, by sale or otherwise", and a wide interpretation would be consistent with other copyright instruments pre-dating the Copyright Directive such as the rental and lending rights directive, the Attorney General was not persuaded by their arguments. The Copyright Directive was intended to implement a number of international obligations under the WIPO Copyright Treaty, in which the distribution right is referred to as the right to authorise the making available to the public of the original and copies of a protected work "through sale or other transfer of ownership" – an interpretation that was consistent with other provisions of the Copyright Directive.
On the facts, there was no transfer of ownership – there was therefore no infringement of the distribution right by displaying the furniture in the P&C shop, and making it available for temporary customer use. As a result of that conclusion, there was therefore no need for the Attorney General to consider the second referred question.
Why this matters:
An ECJ decision that using copyright protected furniture in these ways could amount to its "distribution" would mean that advertising agencies (who often borrow high-end designer furniture for use in advertising campaigns) would have to add another copyright clearance obligation to their lists, and increase their budgets accordingly. Thankfully however it appears that a common sense approach will prevail, so using (but not onward selling) such items as props will not be classed as distributing them. Of course, this does not affect any of the other intellectual property and other clearance obligations that may be relevant to an ad campaign, which will continue to apply in the usual way.
The ECJ decision is expected in a few months, although it is likely that they will reach the same conclusions as the Advocate General.