A Copyright is a protective right for creative professionals regulated under German Copyright Law (Urheberechtsgesetz; UrhG). Copyright Law protects the author’s intellectual property of his works and enables him to gain financial benefit from his creation. Apart from protecting the proprietary rights, Copyright Law also regulates the so-called moral rights which are meant to secure the close connection of a creator to his work, e.g., by naming him as the author.
What is protected under Copyright Law?
Protected are works of literature, science and the arts, and there is much more to these three categories than you may think at first glance. Among the protected works of literature, science and art, you will find linguistic works such as written works, speeches and computer programs, but also artistic works, photographs, films, pantomimic or dance works, or images of a scientific or technical nature such as drawings, maps, plans, sketches, to give just a few examples.
However, these works do not receive an automatic copyright protection; they must achieve a certain level of creativity worthy of being qualified as the result of an immediate and purposeful intellectual creation and design process. This means that unintentional, fortuitous results of an action cannot be protected.
But even though Copyright Law only protects the created work or design and not the mere idea, as creative as it might be, the work can be protected before its completion if drafts or concepts already prove the required level of creativity.
How is Copyright Protection achieved?
In contrast to other protective rights of intellectual property such as patents, trademarks or designs which will only receive protection upon their registration with the office responsible or their presentation to the public, copyright protection exists from the moment the work has been created; no registration or presentation is needed. This means that, e.g., an author’s manuscript or an artist’s painting which has not yet been published can receive copyright protection.
Who is the Author of a Work?
By law, the author of a work is defined as its creator. This is another aspect in which Copyright Law differs from other protective rights such as trademarks or patents, as the copyright ownership cannot be transferred to a third party. Third parties may, however, economically exploit another person’s work if they are granted a license or an exploitation right by the author.
If more than one person qualifies as an author, then a work is one of joint authorship and the authors all have the right to jointly execute their rights.
What is an Ancillary Copyright?
Protective rights in general are meant to protect the action of imparting a third party’s works to the public. The performer of a musical piece will be given an ancillary copyright for his or her specific performance while the overall copyright to this musical piece or text remains protected separately. In addition to the artistic interpretation of a work, the ancillary copyright also protects substantial investments or technical and organizational services which may, for example, be rendered by a manufacturer of sound recording systems or a broadcasting company who will merely process the respective work.
The ancillary copyright to a photographic image is the one exception that cannot be derived from an already existing work. A photographic image can be any kind of photograph which does not achieve any artistic value, such as everyday family photos, holiday photos or any other kind of snapshot. These images are protected, but not to the same extent as the photographic works of a professional photographer displaying a higher level of creativity, for example, through his or her usage of light and shade.
When does a Copyright expire?
Copyrights expire 70 years from the author’s death (in case of more than one author, after the death of the last author) and will then become public domain. From this time onwards, the work can be used by any third party with no limitation.
Ancillary copyrights have a shorter lifespan which may vary between 25 and 70 years from the moment the ancillary copyright comes into existence.
Which claims is the copyright owner entitled to, and what must be done in case of an infringement?
If a protected work is used without the owner’s prior consent or if an author’s personal rights have been violated, the rights holder is entitled to claims for removal and injunctive relief, which are not based on fault, as well as to claims for information, damages and destruction of the infringing products.
It is important to quickly arrange for the necessary legal steps to be taken in case of an infringement. In general, sending a warning letter to the infringer asking him or her to immediately stop the infringement and to refrain from repeating it in the future will be the first step: If an out-of-court solution cannot be found, the matter must be taken to court, either through an interim injunction or through proceedings in the main action.
Where does our law office’s expertise lie?
We will be happy to assist you in enforcing your protective rights in the case of an infringement, and we will also help you if you are the recipient of a warning letter, being asked to refrain from infringing another party’s rights. And in addition to all this, we have broad experience in drafting and negotiating license agreements and assignments of usage rights. We will make sure that you reap the rewards of your work!