Exhibiting Letters and Copyright

by | Mar 8, 2018 | Blog, Case Comment

Recently, the Amsterdam appeal court ruled in the appeal case between the Dutch Anne Frank Stichting (AFS) against the Swiss based Anne Frank Fonds (AFF).

AFS had acquired three letters from Otto Frank and had put these letters on display at their exhibition. AFF owns the copyrights to all works by Otto Frank and was not amused that AFS acted without their permission. Therefore, AFF went to court and stated infringement on their copyright.

In the appeal case, the Amsterdam appeal court confirmed the ruling in first instance. They accepted, contrary to the arguments of AFS, that there was a copyright on the letters, as they are original and personal in nature.

Secondly, the court accepted that using the letters for an exhibition was an act of publication, even if the copyright protected work is not an “artistic work” like a painting or statue. The Dutch Copyright Act contains no indication that publication at an exhibition is only reserved for works of an artistic nature.

Also, AFS stated that a publication at an exhibition is not a “communication to the public”, as required by European caselaw. However, the court confirmed the first instance decision that an exhibition is a “traditional communication to the public” of copyright protected works.

A further defence by AFS is that Article 23 from the Dutch Copyright Act (which allows exhibition of artistic works without permission by the copyright owner) should be applicable. But the appeal court agrees with the first instance court that letters are not artistic works and that therefore, Article 23 DCA is not applicable. The strange consequence of this hiatus by the Dutch legislator is that paintings and drawings can be displayed in a museum without consent of the copyright owner, but letters cannot. The fact that this creates a difference in rights between copyright owners of “artistic works” and “other works”, is not relevant according to the court.

Following the above, the court rules that AFS has infringed the copyright of AFF and orders AFS to pay the costs AFF had to make for the court case, being 20.000 euro.

Both these cases are available for detailed reading in our recently updated Copyright database,under reference darts-820-641-E-nl and darts-183-002-D-nl.

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