“‘Life-Size’ Sculpture”
摘要
The intention behind the creation of a work (here: what the plaintiff wanted to express with his statues) is not relevant for it to be considered a work within the meaning of Sec. 1(1) Copyright Act. The purpose of the work is irrelevant; the sole decisive factor is its nature. It is not sufficient for the existence of an adaptation that the works (here: the life-size sculptures) create a similar overall impression, as such only depends on the juxtaposition of the respective creative elements. According to general principles, it is the plaintiff who bears the burden of proof for the interference, so that it is for him to provide evidence of the adoption of the protected design elements. The facts required to prove the infringement of another’s copyright can also generally be documented by photographs. Apart from the fact that these images must be sufficiently informative, this does not, however, release the party subject to the burden of proof from the burden of providing concrete evidence as to which specific design element depicted (establishing the property right) constitutes the infringement and precisely where it is depicted. It is not the responsibility of the courts to select, from a large number of photos, those that appear in the author’s favour and, in turn, the specific design elements from these photos without a sufficient verbal submission.