Motion picture protection

from Wikipedia, the free encyclopedia

The motion picture protection means an in German copyright law in § 95 regulated related right .

Justification, requirements and delimitation

Unlike the vast majority of other related property rights (ancillary copyrights), motion picture protection is not set out in the second part of the Copyright Act ( Sections 70 ff. ), But as a film-specific standard in the third part.

§ 95 - Moving Images
The §§ 88 , § 89 para. 4, § 90 , § 93 and § 94 shall apply accordingly to image sequences and image and sound sequences that are not protected as cinematographic works.

All picture and picture-sound sequences that create the impression of a moving picture by stringing together individual pictures , but which at the same time do not achieve work quality , as is the case for protection as a cinematographic work according to Section 2 Paragraph 1 No. 6, are eligible for protection UrhG would be required. The justification of the regulation is based on two considerations in the official justification : On the one hand, the provisions for cinematographic works in the Copyright Act are justified “not specifically in the work characteristics of a film, but in the special features of the film caused by the large number of participants and the high production costs cinematic creation ”, which is why it is plausible that a film is protected even if the work quality is not achieved; on the other hand, the motion picture protection serves the purpose of legal certainty, because when a film is created, “it is not always clear whether the film will achieve work quality”. The subject matter of motion picture protection differs from that of film copyright (as indicated in the official justification): If the latter aims at the creative work of the film author, who is to be involved in its fruits and to be protected under copyright law, § 95 UrhG protects the economic and organizational Filmmaker performance. The provision of § 95 UrhG thus establishes an ancillary protection of the film manufacturer for motion pictures and not an ancillary protection of the film author.

The scope of application of motion picture protection is in any case limited (upwards) by the fact that the protection requirements for film works are already low. For this purpose, a film must not be limited to a mere schematic sequence of photos, but must “present itself as the result of individual intellectual creativity through the selection, arrangement and collection of the material and the way in which the individual sequences of images are put together”; the so-called small coin is also protected as a work. Examples of moving images can be: moving icons and image sequences on user interfaces, homepages or websites; Live streams or recordings, for example of an opera or a play, insofar as these are not even accessible to a plant security service; the recording of sporting events; Amateur films about vacation travel and family affairs; the recording of a fatal parachute jump. The motion picture protection can also come into play if excerpts are taken from a film work which, viewed in isolation, do not reach any level of creation because, in the opinion of the Federal Court of Justice, the economic and organizational service providing protection is “provided for the entire film”, which is why there is also “none Part of the film [is] which does not account for part of this effort and which would therefore not be protected ”.

The utilization of individual images from moving images (“screenshots”) also encroaches on the property right of § 95 UrhG from this point of view. In addition, individual images from moving images are protected as photographs ( Section 72 UrhG), and if the appropriate level of design is reached, they are protected as photographs ( Section 2 UrhG). The cameraman is the photographer or creator of the photographic work. The photo protection then extends not only to the utilization of the individual images in the form of photos, but also to the utilization of the individual images in the form of the film or the sequence of images, so that any use of the sequence of images not only affects the protection as a film or motion picture protection, but at the same time also entails an act of use in relation to the individual images.

Legal consequences

The applicable provisions are laid down directly in Section 95 UrhG (see above for the wording of the provision). The “corresponding [e]” application of § 88 UrhG enables the presumption of the granting of rights of use, even in the case of moving images, if the film (in this case the moving image) is based on a corresponding, existing work. Section 89 (4) UrhG guarantees that the manufacturer of a motion picture also receives the necessary rights to the photographs created during the production of the film, whereby it should be noted that for films that are used on the basis of contracts from before June 30, 2002 the now repealed § 91 UrhG continues to apply. The reference to § 93 UrhG, according to which among other things (paragraph 1) the "authors of the film and the works used for its production [...] according to §§ 14 and 75 with regard to the production and exploitation of the film only gross distortions or other [can] forbid gross impairment of their works or services "is predominantly criticized in the literature because on the one hand there is no film author for motion pictures and the restriction of the (copyright) personal rights of the author or ancillary copyright holder to the works used, for example in the case of mere recordings - how they trigger motion picture protection for themselves - is not justified; However, according to the prevailing opinion, this possible contradiction in valuation can be resolved by weighing up interests. The corresponding application of § 94 UrhG finally grants the motion picture manufacturer access to the performance protection of the film manufacturer as this can also be triggered during the production of a film. In accordance with its protective purpose of appraising economic and organizational performance, the content of § 94 UrhG is limited to the direct adoption (e.g. by copying) of the moving image; a "replication" is allowed, for example.

The restriction of the rights of performing artists ( § 92 UrhG) is not listed in the wording of the law and is therefore not applicable to moving pictures . This is based on the consideration that in a non-creative recording the performance of the artist is in the foreground in relation to the contribution of the film producer that - in the words of the official justification - the recording only serves "the circle of immediate participants in the performance of the performing artist by technical means ”, so that the utilization of the moving picture“ can directly affect the artist in his work, since it replaces his personal performance and makes it unnecessary ”.

literature

  • Ilja Czernik: Film law . In: Artur-Axel Wandtke (Ed.): Praxishandbuch Medienrecht . 2nd Edition. 2 ("Protection of media products"). De Gruyter, Berlin 2014, p. 119-257 .
  • Martin Vogel: Considerations on the scope of protection of the ancillary copyrights of the film manufacturer - initiated by the total TV decision of the BGH . In: Reto M. Hilty, Wilhelm Nordemann, Josef Drexl (eds.): Protection of creativity and competition: Festschrift for Ulrich Loewenheim on his 75th birthday . Beck, Munich 2009, ISBN 978-3-406-59000-9 , pp. 367-376 .

Remarks

  1. ↑ Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 6; Diesbach in Ahlberg / Götting, BeckOK Copyright, as of January 1, 2016, § 95 Rn. 3.
  2. ↑ Official justification , BT-Drs. 4/270 of March 23, 1962, p. 102.
  3. ↑ BGH, judgment of December 20, 2007, I ZR 42/05 - TV-Total = GRUR 2008, 693, Rn. 16; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 2.
  4. ^ As expressly BGH, judgment of February 6, 2014, I ZR 86/12 - Peter Fechter, Rn. 23.
  5. ^ BGH, judgment of April 21, 1953, I ZR 110/52 = GRUR 1953, 299, 301 f.
  6. ^ Ruling opinion, cf. Loewenheim in Schricker / Loewenheim, Copyright, 4th edition 2010, § 2 Rn. 193 mwN
  7. ↑ See Manegold / Czernik in Wandtke / Bullinger, Copyright, 4th ed. 2014, § 95 Rn. 5.
  8. ↑ See Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 10; OLG Koblenz, judgment of July 14, 1967, 2 U 14/67 - Liebeshändel in Chioggia = GRUR Int 1968, 164 for a play; so also the official justification, BT-Drs. 4/270 of March 23, 1962, p. 103. See, however, Munich Higher Regional Court, judgment of December 5, 2002, 29 U 3069/02 - Alpensinfonie = GRUR 2003, 420, in which the recording of a concert is granted security.
  9. ↑ See Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 10; Munich Higher Regional Court, judgment of March 20, 1997, 29 U 4573/96 = ZUM-RD 1997, 290 for a boxing match recording .
  10. ↑ See Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 11.
  11. ↑ See BGH, judgment of March 25, 2010, I ZR 122/08 - advertising of a news channel = GRUR 2010, 1090, Rn. 15th
  12. ↑ BGH, judgment of December 20, 2007, I ZR 42/05 - TV-Total = GRUR 2008, 693, Rn. 18 ff .; KG, judgment of August 27, 2002, 5 U 46/01 - Paul and Paula = MMR 2003, 110, 111.
  13. ↑ See BGH, judgment of August 16, 2012, I ZR 96/09 - single image = ZUM 2013, 406.
  14. ↑ See BGH, judgment of February 6, 2014, I ZR 86/12 - Peter Fechter, Rn. 20th
  15. ↑ See BGH, judgment of February 6, 2014, I ZR 86/12 - Peter Fechter, Rn. 21 f.
  16. ↑ See Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 17; according to BGH, judgment of November 19, 2009, I ZR 128/07 - single film images = GRUR 2010, 620, Rn. 12.
  17. ↑ See Manegold / Czernik in Wandtke / Bullinger, Copyright, 4th ed. 2014, § 95 Rn. 17; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 20; Diesbach in Ahlberg / Götting, BeckOK Copyright, as of January 1, 2016, § 95 Rn. 16; without criticism of the provision of Meckel in Dreyer / Kotthoff / Meckel, copyright, 3rd edition 2013, § 95 Rn. 3 because of the balancing of interests that has to be carried out anyway.
  18. ↑ See Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 95 Rn. 21; Manegold / Czernik in Wandtke / Bullinger, Copyright, 4th edition 2014, § 95 Rn. 18th
  19. ↑ Official justification , BT-Drs. 4/270 of March 23, 1962, p. 103.