Copyright

Authors, photographers, designers and architects have in common that their work is not only creative but regularly produces works protected by copyright, such as articles, songs, photographs, images, specially designed interiors or technical drawings. These works are often the basis on which they earn their income. Unfortunately, such works are also frequently copied by third parties seeking to avoid paying authors, photographers, designers or architects. Assignments may likewise be terminated following disagreements while works created up to that point are nevertheless used without remuneration.

The German Copyright Act (UrhG) governs the protection of such works, the remuneration of their creators (the authors) and the measures available when those works are misused.

The Copyright Act contains rules for determining whether a work qualifies for protection and the scope of that protection, because not every intellectual or creative achievement constitutes a copyright-protected work.

It also contains detailed rules for situations in which the author wishes to grant rights in a work to third parties. Copyright itself is generally not transferable; instead, third parties may be granted rights to use and exploit the work. This is commonly done through licence agreements granting non-exclusive or exclusive rights of use.

The author should ensure that only the rights actually intended are granted and that appropriate remuneration is received in return. Contractual arrangements may divide exploitation and use rights between areas such as print media, radio and television. Rights can also be limited geographically, for example to individual countries, the European Union or worldwide use.

Copyright law is also relevant where companies in the film and sound-recording industries issue cease-and-desist letters to private individuals or businesses on the allegation that illegal downloads were made using a private or business internet connection, commonly referred to as file sharing via peer-to-peer networks.

Watching a film or listening to a sound recording normally involves payment, whether at the cinema, through a rental service or when purchasing a film or recording. The same principle applies when films or music are downloaded from the internet.

Rights of the author

As an author, you have comprehensive rights to exploit the works you have created. You may deliberately permit third parties to use or exploit a work and may prohibit unauthorised use by others.

If an author identifies a copyright infringement by a third party, the author may have claims for (i) injunctive relief, (ii) information, (iii) damages and (iv) reimbursement of the legal fees incurred in enforcing the rights. The amount of damages may depend, among other things, on whether the protected work was misused by a business or a consumer and on the extent of the use.

The author generally retains the right to pursue unauthorised use of the work, often alongside a person or entity holding rights of use or exploitation.

An injunctive claim may be pursued through preliminary injunction proceedings. Applications for preliminary injunctions are, in our experience, generally decided by the court on the day they are filed. If the unauthorised user accepts the injunction by issuing a final declaration, the injunctive aspect of the matter is resolved.

The author’s remaining claims for (i) information, (ii) damages and (iii) reimbursement of legal fees may have to be enforced in main proceedings if the unauthorised user refuses to satisfy them out of court.

Because recommended remuneration levels exist in many fields, including for authors and photographers, damages can often be quantified with considerable precision. There are different methods of calculating damages; in our experience, calculation by analogy with a licence is frequently used. The author is then treated as if a licence for the use of the work had been granted to the third party for a fee.

These principles are also relevant to cease-and-desist letters issued by film and sound-recording companies in file-sharing cases. A particular feature of these matters is that such companies can initially identify only the subscriber to the internet connection and may allege that this person committed the infringement. In our experience, the subscriber is often not the person who carried out the download; other family members, especially children, guests or even unauthorised third parties may have used the connection. The subscriber is therefore not necessarily liable, and the individual circumstances should be examined carefully before the claimant is contacted.

Our services

We advise authors on whether their work qualifies for protection and on the ways in which it may be exploited. We have prepared numerous licence agreements concerning the use of copyright-protected works.

We also assist authors who discover unauthorised use of their works by third parties. We have conducted numerous court proceedings and enforced the rights of photographers, authors and architects, including applications for preliminary injunctions and main proceedings before regional courts throughout Germany.

In addition, we have represented businesses and private individuals in numerous cases involving cease-and-desist letters from companies in the film and sound-recording industries concerning alleged file sharing. In most of these matters, we were able to defend against the payment claims in full.

If you have questions about our services or about the costs that may arise, please contact us by telephone or e-mail. We will be pleased to assist you.