Free use

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The free use is in German copyright a kind of plant use. It enables a work to be used in a new, independent work without the consent of the author, provided that the personal features of the original work fade and those of the new author come to the fore.

History and regulation

The official justification of the Copyright Act provided for the adoption of the legal provisions from § 13 LUG and § 16 KUG :

"In accordance with the applicable law (§ 13 LUG, § 16 KUG), the draft provides that, in deviation from the regulation in § 23, a work created on the basis of another work can then be published or exploited without the consent of the author of the work used may if it has broken away from the original to such an extent that it is to be regarded as a completely independent new creation (free use). "

The regulation takes place in § 24 UrhG :

§ 24 Free use

(1) An independent work that has been created with free use of another's work may be published and exploited without the consent of the author of the work used.

(2) Paragraph 1 does not apply to the use of a work of music through which a melody is recognizable from the work and used as the basis for a new work.

Demarcation

In contrast to the other types of work, unchanged use ( § 15 UrhG) and processing ( § 23 UrhG), free use does not require the consent of the author of the original work. Editing and free use are both borrowed from an original work, although it is only free use when it is no longer an adaptation. The author's own personal contribution to the new work is decisive.

Only works that are already protected by copyright can be freely used - within the meaning of § 24 UrhG. Works that are in the public domain due to a lack of creativity or due to age can also be used freely, but only because they are not protected by copyright, but not because this regulation allows this.

criteria

A work based on free use of a photograph. (Drawing by Herbert Wetterauer after a photograph by Fritz Eschen )

The reference to the original work is not relevant as this is already provided for by the law. It is more important that the personal features of the original work fade and those of the new author come to the fore. The personal traits are all the more likely to fade if they are only weakly present in the original work, for example in works that can be seen as small coins . The similarities between the two works, not the differences, are considered. If, for example, the plot of a fable is completely taken over, but the design is changed so that the reader is immediately reminded of the original work, then it is always an adaptation, not a free use. The same applies to continuations of works. In the case of parodies , clear adoptions of the design are also allowed. Even the unchanged transfer of protected moving images for a satire in another show can be subject to free use. It depends again on whether the parody has an “inner distance” to the own personal features of the original work.

It is controversial whether works that transfer the original work to another genre also represent free use. In one opinion, such works are excluded from free use. The opposite view always sees a transfer to another genre of work, with the exception of film adaptations, always free use, provided it is not the same or a neighboring genre of work. If several works refer to the same original public domain work, all adaptations are always free use. So someone who edits the Mona Lisa cannot sue anyone else because he does. If an author tries to follow the success of another work with his adaptation, free use is tied to particularly high requirements.

The Federal Court of Justice (BGH) had to decide whether the sale of carnival costumes, the design of which was derived from a literary figure, constituted an adaptation and thus a violation of the author's copyrights or free use. In the judgment, he was based on whether the objective characteristics of the figure were adopted, which make up “the creative peculiarity of the original”. For a literary figure to be protected by copyright, an unmistakable combination of external characteristics, character traits, abilities and typical behaviors must come together. Individual external features are not sufficient for protection, so adopting them does not infringe copyrights. Especially in the case of the Mardi Gras costume, the act of dressing up and slipping into a foreign role speaks for the assumption of an inner distance to the work and thus indicates free use.

Perlentaucher magazine, for example, refers to the free use of third-party works when using book reviews from various German-language quality newspapers in its own summaries of these reviews, which were also sold on to booksellers. In the revision, the basic possibility of free use of book reviews was expressly confirmed by the BGH in December 2010, but the proceedings were referred back to clarify whether the individual creative character required for this is sufficient for the uses at issue. This is particularly questionable in view of the scope of the quotations embedded in the freely formulated uses of the reviews.

Restrictions on music

In § 24 Abs. 2 UrhG the free use for works of music is restricted if the melody is clearly the basis of the new work. This makes parodies practically impossible, unless the author of the original work agrees to the parody (i.e. adaptation). The term melody is not defined in copyright law. It is assumed, however, that the melody is a closed and ordered sequence of notes, which gives the work an individual character.

The use of short samples by other authors was found in a ruling of the Federal Court of Justice of November 20, 2008 that was overturned by the Federal Constitutional Court only under so narrowly defined conditions that in practice it would always have been tied to the consent of the original rights holder. The Federal Constitutional Court saw the ruling unconstitutionally restrict the freedom of artistic debate and therefore repealed it and referred the matter back to the BGH.

Individual evidence

  1. ↑ a b c Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal note 2
  2. ↑ Official justification on copyright.org
  3. ↑ § 24 Law on Copyright and Related Rights
  4. ↑ Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal note 1
  5. ↑ Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal nos. 2, 4, 5
  6. ↑ Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal number 6
  7. ↑ a b Schack, Copyright and Copyright Contract Law, 4th edition, marginal no. 245
  8. ↑ a b Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal number 9
  9. ^ BGH, judgment of April 13, 2000 - I ZR 282/97 - "Mattscheibe"
  10. ↑ a b Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal note 3
  11. ↑ Schack, Copyright and Copyright Contract Law, 4th edition, marginal no. 244; Loewenheim, Handbook of Copyright, Section 8 No. 15th
  12. ↑ BGH, judgment of July 17, 2013 - I ZR 52/12 - "Pippi Longstocking"
  13. ↑ Judgments of December 11, 2007 - Ref .: 11 U 75/06 and 11 U 76/06; OLG Frankfurt: Permissible contents of third-party book reviews in abbreviated form (abstracts)
  14. ↑ News on copyright.org
  15. ↑ Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal note 12
  16. ↑ Loewenheim, Handbook of Copyright, Section 8, no. 18th
  17. ↑ Vinck in Fromm / Nordemann, Copyright, 9th edition, § 24 marginal number 15
  18. ↑ BVerfG, judgment of the First Senate of May 31, 2016 - 1 BvR 1585/13 - Rn. (1-125) - "Constitutional complaint"
  19. ↑ BGH, judgment of November 20, 2008 - I ZR 112/06 - "Metal on Metal"