BGH: Beuys' art not deformed after all?

The great Joseph Beuys - not overrated

This Kat has been investigating the outcome of some of the cases she reported on before her recent sabbatical.  One of the cases concerned a German copyright collection society (Verwertungsgesellschaft Bild-Kunst), which sought to prevent the re-display by a German museum (Stiftung Museum Schloss Moyland) of 18 photographs taken of the famous late German artist Joseph Beuys during a live art performance which itself was broadcast on German TV in 1964. German copyright law protects live art performances as “artistic works”, (see previous IPKat post here). 

The 2009 exhibition had displayed a recently unpublished series of black and white photographs taken by Manfred Tischer. These photos showed Mr Beuys during his live art performance of “Das Schweigen von Marcel Duchamp wird überbewertet, 1964” (in English: Marcel Duchamp's Silence is overrated, 1964) during a live TV broadcast on German television in 1964.  The museum displayed the photographs without seeking consent from the Joseph Beuys Estate.

The court of first instance, the Regional Court of Düsseldorf decided that the museum may not exhibit the photographs as they were infringing the Joseph Beuys Estate’s copyright.  This was confirmed by the court of appeal, the Higher Regional Court of Düsseldorf which took the view that while the photographs had adapted Mr Beuys' live art performance, that adaption had not been far enough removed from the original live art performance to amount to a free adaption(deformation) which would not have required consent from the copyright holder.  The court allowed a further appeal to the German Federal Supreme Court (Bundesgerichtshof) due to the importance of the legal questions raised.

German media recently reported that the Bundesgerichtshof did indeed see matters differently.  German news magazines Handelsblatt and Focus cite the court’s presiding judge Mr Bornkamm as having said that the court would have had to review Mr Beuys’ complete original performance to be able to establish whether the photographs amounted to a mere un-free adaptation.  As the court only “knew of some aspects” of the performance due to the lack of a recording of the live performance, this point simply could not be decided.  
 

The museum was reportedly pleased with the decision and believes it allows “public and scientific access to dynamic works of art”. Merpel can’t help but thinking that the museum reads a bit too much into a decision that basically says ‘we weren’t able to decide’ and wonders whether case would have been decided differently if the German broadcaster had kept a copy of the broadcast...

The media reports cite the case reference as follows: I ZR 28/12. However, this Kat is not quite sure this is correct since she cannot find the full text of the decision and she would love to read it. If you know where to find it, please post below.