According to Sec. 5(2) of the Copyright Act, the notion of free use indicates that a different and original work exists when the work to which it refers, in spite of the connection, fades completely into the background. The characteristics of the work relied on necessarily pale in comparison to the new work’s uniqueness.
Considering the great wealth of freely exploitable material available, the free use of works protected by copyright must be limited to a minimum that must be preserved in order to not excessively restrict the freedom of artistic creation; therefore, strict requirements must apply to the acknowledgement of a free use.
In the present case, the original work (the Hundertwasser house) has a distinctive individual character. The disputed design of the scarves reveals, even at a mere glance, the characteristic features of the original. In particular, its characteristic building frame is represented almost identically in its structure. Although the mirroring, the partial difference in the colours assigned to certain building parts, the lettering and the dotted background constitute an intellectual creation added by the author of the treatment, a fading of the original cannot be determined even in the slightest degree.
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Decision of the Supreme Court (Oberster Gerichtshof) 12 February 2013 – Case No. 4 Ob 190/12p. “Hundertwasser Scarf”. IIC 45, 92–95 (2014). https://doi.org/10.1007/s40319-013-0158-7