Federal Court of Justice orders new round in Bavaria’s cartoon dispute
That was the starting point: FC Bayern fans staged a choreography with the protagonists Robben and Ribery in the 2015 cup semi-final against Borussia Dortmund
Source: pa/dpa/Andreas Gebert
FC Bayern is caught up again by its past. The club has been fighting a legal dispute with a cartoonist for years. From the club’s point of view, it seemed to have been won. But the Federal Court of Justice found that the substance of the lawsuit had not been sufficiently considered.
EThe long-standing legal dispute between FC Bayern and a graphic artist over caricatures of former Munich pros Franck Ribéry and Arjen Robben is entering the next round. With a decision published on Thursday, the Federal Court of Justice (BGH) in Karlsruhe reversed a judgment by the Higher Regional Court (OLG) in Munich and ordered a new hearing there.
The graphic artist had designed Ribéry and Robben as variants of Batman and Robin, which were shown as XXL versions in the semi-finals of the DFB Cup between Munich and Borussia Dortmund in 2015 in the Munich Arena in the Bayern fan corner. The slogan underneath: “The Real Badman & Robben”. According to the association, he suggested marketing the drawings together – which did not happen.
Instead, since May 2019, FC Bayern has offered merchandising items in the fan shop that took up the slogan with newly drawn but very similar motifs. On the other hand, the graphic artist sued successfully before the District Court of Munich I. In his opinion, the synopsis of the drawings with the slogan “The Real Badman & Robben” was a “protectable (entire) work”.
FC Bayern was initially right
FC Bayern had argued that the images used by the club, which were printed on mugs and T-shirts, for example, were independent works that differed from the plaintiff’s caricatures. And the slogan is not protectable. In the appeal proceedings before the Higher Regional Court, the association was right.
From the point of view of the Federal Court of Justice, however, the Higher Regional Court did not examine the “work character” of the combination of slogan and drawing, but considered both in isolation – and thus did not sufficiently examine the core of the lawsuit. It cannot be ruled out that the Court of Appeal would otherwise have come to the conclusion that a protectable work could be seen in the drawing in conjunction with the slogan “The Real Badman & Robben”.
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A date for the new hearing at the Higher Regional Court has not yet been set. If the judgment of the regional court becomes final, the graphic designer is entitled to information about the profit that the club has made with the merchandise products – and to compensation.
