Asterix the Gaul is a well-known cartoon character throughout Europe. He is part of a resistance movement against the Roman rule. The German Supreme Court has recently been confronted with two cases which alleged infringement of the copyright in the cartoon character and those of his companions. In both cases the Supreme Court confirmed that copyright protection exists in cartoon characters and other fictional characters where there exist unmistakable combinations of external features, qualities, capabilities and typical behavior. Asterix clearly meets such criteria. The Court, in both cases, further considered what constitutes a fair use of a work that is subject to copyright protection under German law so that it ceases to be a copyright infringement. The Court concluded that the fair use exists when the characteristic features of the earlier work "fade" in comparison with the new and allegedly infringing work's original creative content. Thus, a parody could be a fair use but only if it was sufficiently distinct from the original work and used the characteristics of the original work simply as a starting point for the creation of an independent work in antithetical form.
Based on these general principles of law, the Court in one case found that a
comic book displaying Asterix as part of a motorcycle gang clearly did not have
the necessary independent creative content to constitute fair use. In another
case where the defendant produced a comic book that concerned the production of
a film about "Alcolix", who was a Gaul defending his village against an
invasion by U.S. troops, and scenes from the film were interspersed with scenes
about the making of the film, the Supreme Court remitted the case to the Munich
Court of Appeals for further consideration of whether the book in which the
Asterix-based character was used was sufficiently creative as to constitute a
fair use. The Court did not comment on the fact that, in the scenes about the
making of the film, the character playing Alcolix was shown as a drunkard,
which was pleaded by the copyright owners as an act of disparagement that could
in itself negate a fair use defense.