If you make a copyright claim, you should know the ropes

When can you, as a client, (whether or not together with your supplier) be considered a copyright holder? This question, among others, was the subject of discussion in a spicy case about the copyright on SM whips.

Slagwerk, a seller of whips and spanking instruments used in the BDSM world, and O-Products, a wholesaler of erotic items, end up in court after working together. Slagwerk sends the photos of the above whips and discusses a number of changes to the design with O-Products. O-Products then suddenly decides not to purchase whips from Slagwerk anymore and has them produced by a third party. That does not sit right with Slagwerk. In court O-Products argues that, as Slagwerk's client, it is the (joint) creator and hence (joint) copyright owner, as it had discussed changes to the whip with Slagwerk. The court does not go along with this. Having discussions and indicating the desired changes and/or approving them does not make you a (co)creator of the work. The basic model of Slagwerk already existed and the small changes to it are insufficient to consider O-Products as co-creator of the whip.

Another interesting subject dealt with in this judgment is the question of whether someone can be held to be the creator of a work if another name than the name of the actual creator is mentioned on the work. To illustrate: on Vincent van Gogh's Sunflowers his name (Vincent) is mentioned, and (partly because of this) he is considered the creator of the painting. But how does this work for Banksy, who works under a pseudonym and whose name is not known? The court ruled that the name mentioned does not have to be the true name of the actual creator. Banksy therefore does not have to worry about who the copyrights to his works are attributed to.

Mathijs Peijnenburg