Copyright
Frequently Asked Questions about Copyright
Copyright plays a crucial role in the realm of creative works. But who is actually the author, and what rights and claims do they have? We answer the most important questions here.
What is copyright?
Copyright protects intellectual property and governs the creator's exclusive rights to their work.
The central question is whether a work can be recognized in copyright law at all. For this, a personal, intellectual creation must exist. These criteria are generally met for photographs, designs, sophisticated literary texts, music, films, paintings, as well as for applied arts such as graphic design.
Who can be an author and what rights do they have?
Under German copyright law, only natural persons can be authors. A natural person is any human being.
The author can
- use and exploit his work
- grant others permission to use or exploit.
Furthermore, he has the right to be credited when his work is used by others.
When does copyright protection arise?
Copyright protection generally arises with creation, meaning the making of the work.
Copyright for Photos and Images
Photos, pictures, shots, photographs, and photographic works, as well as plans, (technical) drawings, sketches, works of art, and images are inseparably linked to the artist or hobbyist who created them. Rights are held on all these intellectual creations, which must be defended or pursued in case of disputes. We often encounter these tasks in connection with company presentations, web portals, web shops, online shops, platforms such as eBay, as well as in catalogs, advertising material, flyers, etc.
Copyright for an image arises when there is a personal intellectual creation.
This first requires that the image was created personally – that is, by a natural person. A photograph taken automatically in a photo booth at a train station is therefore not eligible for copyright.
Furthermore, a creation must exist. A creation requires a certain „level of creativity.“ A level of creativity is present when the image exhibits a certain degree of individual design. It must, in terms of this individuality, at least stand out somewhat from the norm. This criterion of a certain individual design was further lowered by the „extension of copyright“ to so-called neighboring rights. Under these standards, even a very small degree of individual design is often sufficient for copyright protection.
Copyright of texts
Publications in the classic print sector, such as specialized literature, magazines, non-fiction books, or catalogs, texts, articles, books, other specialized contributions, as well as reports within the scope of internet presences, forum discussions, or other online publications, can enjoy copyright protection.
The aforementioned statement regarding photographs also applies to the creation of copyright in texts: the text protected by copyright must also represent a personal intellectual creation.
Unlike with photographs, text does not have the facilitating conditions of a so-called neighboring right. Therefore, text must possess a certain individuality that sets it apart from the norm. Copyright is thus more likely to be found in a journalistic newspaper article than in a mere personal blog post. However, the line – as is often the case in copyright law – is fluid.
Copyright for Music and Films
The download and upload of copyrighted works such as songs, music pieces, sound recordings, lyrics, or films – file sharing or the unauthorized use, exploitation, or utilization of others“ music and film (works), for example, in the context of self-created videos (school projects, platforms like YouTube) or music pieces, is a common issue in our practice.“
Songs are copyrighted works. The issue of songs and copyright is particularly well-known due to the so-called mass cease and desist letters from various law firms in connection with file-sharing. In these cases, music companies such as Sony, BMG, or Universal assert claims for injunctive relief and damages against individuals who have downloaded or shared music or films on internet exchange platforms.
A whole warning letter industry has formed here. We have always successfully defended our clients against such warning letters. Most recently, we were even able to secure a ruling against a music corporation through a negative declaratory action to „withdraw the warning letter.“.
Special considerations for graphic designers and web designers
The area of graphic and web design – in other words, applied art – in particular, has experienced a small revolution due to the Federal Court of Justice's (BGH) „Birthday Train“ decision. In this ruling, the BGH significantly lowered the threshold for copyright protection in the field of graphic and web design, meaning that even "simple" graphic designs can enjoy copyright protection and must be compensated accordingly.
Duration of copyright protection
Copyright protection lasts for 70 years after the author's death.
Copyright Infringement Notices - How to Respond?
Were you warned?
It is essential to consult an expert copyright lawyer. Our clients often receive copyright infringement notices that are not justified. Our lawyers then examine whether there is a legitimate case for a copyright infringement notice and, depending on the outcome, jointly decide on subsequent strategies and courses of action with you.
It is possible to fend off the opposing party's claims entirely or to reach a settlement with the opposing counsel, which can avoid an expensive copyright dispute in court.
Important steps in this process:
- Check: Copyright Infringed? (Immediately!)
- Submission of a modified cease and desist declaration
- Counter-warning
- Negative declaratory judgment
It is important that you contact a copyright lawyer quickly so that they can respond immediately and save you expensive warning fees or lawsuits.
Was your copyright infringed? – Claims for copyright infringement
Depending on the outcome of the exam, you will have the following options:
- copyright infringement notice
- Copyright request
- Preliminary injunction in copyright law
- Copyright lawsuit
- Cease and desist claim for copyright infringement
- Claim for damages in copyright law
- Action for disclosure in copyright law
- Claim for adequate remuneration in copyright law
The individual copyright instruments and defensive claims
Copyright infringement notice
The infringer will be instructed by your lawyer to immediately cease the copyright infringement. They will also be asked to provide a cease and desist declaration within a short period. If the opposing party complies, the warning procedure can already lead to the desired cessation of further infringement and compensation for damages incurred out of court. If the infringer refuses to admit their unlawful act, the next step is for your copyright lawyer to enforce the claims in court.
Preliminary injunction in copyright law
As a rule, a temporary injunction is preceded by a warning from your lawyer, which is directed at the infringer. If the infringer does not comply, the protection of your copyrights can be obtained in summary proceedings – the temporary injunction proceedings. This summary proceeding is often aimed only at the „cessation“ of the copyright infringement and is conducted by your copyright lawyer.
One hurdle in this expedited procedure is the so-called „urgency period.“ You can usually only obtain a preliminary injunction in copyright law within a period of 1 month after becoming aware of the infringement. Within this period, the warning procedure with a deadline for cessation must be completed so that you do not have to bear the costs of your lawyer.
When calculating the urgency period, there can be deviations from the strict one-month period in individual cases. In the event of a copyright infringement, for example, that occurred on the internet, you can take legal action with your copyright attorney in practically all of Germany. Some courts have longer urgency periods in these cases (e.g., Frankfurt 6 weeks; Düsseldorf 2 months).
However, please always assume that a temporary injunction can normally only be obtained within a period of 1 month after you have become aware of the infringement. Therefore, haste is required.
If your lawyer obtains a preliminary injunction for you, the court will order the infringer to refrain from violating your rights, subject to a fine of up to €250,000.00 or custodial penalty. Costs for the warning letter and damages will generally be enforced in a subsequent lawsuit.
Copyright lawsuit
If the infringer does not comply after a warning and the urgency period has passed, or if your lawyer has obtained an injunction for you which the infringer does not acknowledge, your claims for injunctive relief, information, and damages must be enforced through legal proceedings.
Since such legal proceedings are usually lengthy, it is worthwhile to react immediately upon becoming aware of the copyright infringement and to instruct your copyright lawyer to enforce your claims by means of a warning letter and then through summary proceedings.
Claims for damages under copyright law
Infringement of your copyrights also gives rise to a claim for damages against the infringer. In the case of a justified warning, this initially consists of the costs for your attorney. In addition, compensation for the damage incurred by you due to the unlawful use of your works by the infringer can be demanded.
Since calculating such concrete damages often presents problems, three variants have emerged in literature and case law.
On the one hand, you can choose the actual damage incurred, provided it can be calculated. On the other hand, the infringer's profit can be chosen. Here, too, however, the calculation must be possible.
The most common third variant is the method of so-called license analogy. Here, the question is what the two parties would reasonably have agreed upon to compensate for use in the form that occurred.
Calculating damages is one of the most difficult tasks in copyright law. You can rely on our years of experience in this area as experts.
Copyright Design - License Agreements
Copyright is an intellectual property right. Therefore, if you wish to „sell“ your work, you must do so in the form of licenses. As lawyers, we can prepare license agreements for you that individually reflect the respective use of your works by your clients or contractual partners.
Hereby, you secure your rights on the one hand, and on the other hand, in such copyright license agreements, the customer/contract partner is obligated to pay you license fees corresponding to the usage.
Entitlement to adequate remuneration in copyright
If you have created something for a client that is protected by copyright and have not been adequately compensated for it, you have a claim against that client/business partner for appropriate compensation.
The question of what constitutes „adequate remuneration“ is closely linked to the calculation of damages in cases of unauthorized use or exploitation of your works. As a general rule, adequate remuneration is determined by what would have been „customary“ remuneration. For many industries, there are applicable „customary“ remuneration rules that can serve as the basis for calculation in these cases.
Do you need legal advice on copyright law?
As specialist lawyers for copyright and media law, we have many years of experience in the field of copyright law and can therefore advise and represent you as a copyright law firm in the districts of Frankfurt, Darmstadt, Mannheim, as well as nationwide, in a targeted manner.
Our services include, among others, the following areas:
- Cease and desist letters
- Copyright lawsuits
- Cease and desist letters copyright
- Copyright infringement lawsuits
- Claim for adequate remuneration of the creator (BGH Birthday Train)
- Temporary injunction copyright
- License Agreements Copyright
How does the consultation work?
First, we will discuss your case and assess its prospects of success. Depending on the outcome of this assessment, we will coordinate the next steps with you. Our philosophy is to develop a „meaningful approach“ for you. Initiating a process that has no prospect of success makes no sense, as it would only cost you money and cause you worry. Furthermore, you would be right to accuse us afterward of not having informed you sufficiently. Therefore, we will tell you quite openly if we see no prospect of success. This will save you the loss of money and valuable time, and us a poor review afterward.
Contact us and explain the copyright infringement of your rights to our specialists. As specialist lawyers for copyright law, we will then first examine your case and determine whether copyright protection exists at all. If this is not the case, claims may still arise from trademark or competition law.
Should there be an infringement of your copyright, we will in the next step assess the extent of the infringement and provide you with a targeted course of action for enforcing your rights.
How can we help you
As experienced lawyers with over 30 years of experience and 15,000 cases handled, we are trained to develop individual solutions for our clients. You are our focus. This is also reflected in our reviews: the majority of our clients recommend us, which we are particularly proud of. And that is why we are confident that we can competently assist you with your legal problem.
This is how the consultation works
First, contact us either by phone or using the contact form below. Please describe your situation. Afterwards, we will get a clear picture of your situation in order to provide an initial legal assessment.
How to find us
Our law firm in Mannheim is located at P7, 22.
Contact us now: Our copyright lawyers are here for you
