Use of props in marketing

Case no. 171/2017
Judgment delivered on 18 December 2018

Coop Danmark A/S
vs.
K.H. Würtz represented by Kasper Heie Würtz

The case concerned in particular whether the rights of K.H. Würtz represented by Kasper Heie Würtz under the Danish Act on Copyright and the Danish Marketing Practices Act had been violated by Coop Denmark A/S’s use of Kasper Würtz’s ceramic tableware on food packaging and in sales material.

The Supreme Court considered, among other things, whether Coop’s use of the tableware was justified under a non-statutory principle of the right to secondary use of props in advertising etc. (a de minimis principle).

The Supreme Court stated that the use of copyrighted work even in a commercial marketing context may be of subordinate importance with the effect that the copyright holder’s rights will not be considered to be violated even though no consent has been given.

The Supreme Court held that the use of Kasper Würtz’s tableware on packaging and in sales material in the majority of the reproductions in the case could not be regarded as being of subordinate importance in the context in question which would justify a derogation from the protection afforded by the Danish Act on Copyright.

The Supreme Court thus held that Coop had significantly violated Kasper Würtz’s copyrights, and that the conditions for ordering Coop to pay reasonable compensation to Kasper Würtz for the use of his tableware had been fulfilled. Coop was ordered to pay DKK 200,000 in compensation to Kasper Würtz.

The Maritime and Commercial Court had come to the same conclusion.