General copyright
Copyright-protected works, related rights, copyright contract law, and rights in musical works
Status: Dezember 2023
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Work as an expression of human creation
(Self-)photographs of the Indonesian macaque Naruto
Paintings of the chimpanzee Congo
§ 1 What is a copyright-protected work?
Not everything considered “artistic” is protected by law. Nor is every good idea protected. To qualify for copyright protection, the work must fall within the scope of copyright law.
Categories of works according to Section 2(1) of the German Copyright Act
Section 2(1) of the Copyright Act lists the following seven types of work from the categories of literature, science, and art. The list is illustrative (“in particular”) and not exhaustive.
► Nr. 1: Literary works (e.g. written works, computer programs)
► Nr. 2: Musical works
► Nr. 3: Dance
► Nr. 4: Visual arts; buildings
► Nr. 5: Photographs
► Nr. 6: Films
► Nr. 7: Representations of scientific or technical art
► “In particular” means that No. 1 to 7 are not exhaustive, so theatre productions and similar works may also be included.
What constitutes the work?
Only personal intellectual creations are protectable works under Section 2(2) of the Copyright Act. Case law has developed four criteria that must be met for a personal intellectual creation to qualify as a protected work.
► Created personally
► Perceptible form
► Individuality
► Threshold of originality
A work must be an expression of human creation (created personally).
Only creative creations of people (“personal intellectual”) are protected first and foremost. This excludes creations by animals. Media controversies included (self-)photographs of the Indonesian macaque Naruto and the paintings of the chimpanzee Congo. In any case, the Copyright Act denies protection to works not created by humans. The same applies to a creation generated by artificial intelligence (AI), which cannot receive any protection under the Copyright Act. However, AI may be protected under related rights such as investment protection (e.g. the programming itself but not the output generated by the AI).
A “personal intellectual creation” is generally lacking when a person merely declares found objects to be art (ready-made or objet trouvé). However, if intellectual creativity is evident in the selection, arrangement, or contextualisation of ready-mades, this may give rise to a copyright-protected work.
This is different in conceptual or action art such as Happenings or Fluxus (e.g. Joseph Beuys’ “THE SILENCE OF MARCEL DUCHAMP IS OVERRATED”), where the human, personal, and intellectual act of creation lies in the imaginative selection, composition, or arrangement of objects or events. This is eligible for copyright protection.
Embodiment of the personal intellectual creation (perceptible form)
Unembodied ideas and concepts do not qualify as personal intellectual creations because they have not been expressed in a perceptible form. Purely conceptual ideas often do not meet the threshold required for copyright protection. Thus, the idea for a project (e.g. a performance piece addressing the theme of data traces in the digital space) is not protected by copyright in a way that would prevent other artists from realising a similar concept.
Individuality
The assessment of the individuality of a work considers the extent to which it reflects the personality of the author. The focus is not on the novelty of the work, as required under design or patent law, but rather on whether the creation shows that the individual authors have used the available creative scope for their own artistic expression in a way that reflects their personal style.
Threshold of originality
The final criterion that must be met is the threshold of originality, which a personal intellectual creation must reach in order to be protected under the Copyright Act. The threshold of originality measures the degree of artistic individuality expressed in the work.
In the case of texts in particular, the question often arises as to how extensive and distinctive the wording must be. As a general rule of thumb: The shorter the texts are, the higher the requirements for the distinctiveness of the language. For example, the sentence by Karl Valentin:
“Mögen hätte ich schon wollen, aber dürfen habe ich mich nicht getraut” (“I would have liked to, but I didn’t dare”) is already protected by copyright.
When copying or sampling melody segments in compositions, the question arises as to when the borrowed part is substantial enough to qualify for copyright protection. Whether, for instance, the use of a two-second melody fragment meets the threshold for a protectable creation remains the subject of ongoing legal debate. For three decades, various German and European courts have been addressing whether and under what conditions sampling is permitted in music in the “Metal on Metal” decisions (where a sound recording is so short that it affects not the copyright of the composers but rather the rights of the producers of sound recordings).
A note for experts:
The concept of a “work” must be interpreted according to European law. So far, it has not been fully clarified whether the European Court of Justice (CJEU) takes the view that individuality is decisive or whether a threshold of originality (i.e. an artistic achievement) is also required. A proposal on this issue has been filed with the CJEU since 23 November 2023.
§ 2 What are related rights?
The Copyright Act can also protect the performances of performing artists, sound recordings, and the contributions of organisers and producers.
Such related rights protect contributions that are artistic, organisational, or economic in nature and are important for the creation of a work, without constituting personal intellectual creations within the meaning of Section 2(2) of the Copyright Act.
For example, copyright law grants protection to performing artists (e.g. actors, singers, or musicians) for their individual artistic performances.
The main legal differences between related rights and copyright concern the scope of the rights granted (exploitation rights) and the duration of protection.
Example 1
If a venue has agreed with a dancer and a choreographer on a one-time performance in which the dancer performs the choreographer’s choreography and the production is to be revived in the next season, the role may be recast with a different dancer without the original dancer’s consent. However, the choreographer must grant permission for the choreography to be used again. In this respect, the dancer does not hold exclusive rights to their performance. For performers, protection begins only with the digital recording of their artistic performance and not with a mere imitation. In the case of choreographies, however, even an imitation can fall within the scope of protection.
Nevertheless, a licence from the dancer is still required to record the performance (e.g. for rehearsal purposes).
Example 2
A singer who records a performance in a studio and agrees to the production and distribution of a CD no longer needs to be consulted when that music is played from the CD on stage (e.g. as background music). In such cases, the rights do not need to be obtained from the holders of related rights such as the singer or musicians. This type of use – playing a recording on stage – is already permitted by law. However, in the event of use, a remuneration must be paid.
On the other hand, the composer as the author must give consent for the CD to be played on stage. If they are a member of GEMA, the rights must be acquired there.
§ 3 Contracts for rights under the Copyright Act – copyright contract law
When is it permitted to use the works and services of artists?
Copyright-protected works and performances may be used only if
• an agreement has been reached with the artists or with the collecting societies representing them (contractual granting of rights)
• their use is permitted by law (e.g. under a statutory licence or in royalty-free cases such as quotation rights or pastiche).
Contractual agreements on rights of use
Authors may grant rights to other persons to use their copyright-protected works. This is done through agreements that specify how the work may be used and for what purposes (commonly referred to as licences).
Example 3
An artist collective plans to stage a production featuring text, choreography, music, and other elements at a venue and to record the performance.
At a later stage, they are considering streaming the recording as part of a digital festival.
In granting rights for the production, both copyright and related rights of various contributors must be considered:
- the copyrights in the texts, musical compositions, and choreography forming the basis of the production.
- where applicable, copyright to the stage design (depending on the threshold of creation)
- Related rights of performing artists in the recordings of their respective performances (such as acting, dance, singing, or instrumental music) for streaming purposes.
- Related rights of the organiser in the recording of the performance.
- Related rights of the producer of sound recordings if the music was not performed live but rather played from a recording.
For the rights under the Copyright Act, we distinguish between the different types of use. This can be compared to a rental agreement. A rental agreement also regulates how the rented space may be used (e.g. for residential, commercial, organisational, hospitality, or legal purposes).
Section 15 of the Copyright Act sets out the types of use for which authors hold exclusive rights.
| No. 1: the right to reproduce (Section 16) | No. 2: the right to distribute (Section 17) |
| No. 3: the right to exhibit (Section 18) | No. 4: the right to recite, perform, and present (Section 19) |
| No. 5: the right to make available to the public (Section 19a) | No. 6: the right to broadcast (Section 20) |
| No. 7: the right to communicate by means of visual or audio recordings (Section 21) | No. 8: the right to communicate radio broadcasts and make available to the public (Section 22) |
The list of rights of use to be granted in Example 4 above includes, in particular, the right to perform (Section 19(1),(2) of the Copyright Act), the right to reproduce and distribute (Sections 16, 17 of the Copyright Act), the right to stream (Section 19a of the Copyright Act), and the right to the first exhibition of the stage set (Section 18 of the Copyright Act) as well as rights for various forms of live or subsequent communication to the public (Sections 19(3) and (4), 21, and, where applicable, 22 of the Copyright Act).
The granting of rights usually takes place either through a specific list – as in the paragraph above – of the rights granted (set out in a contract or, less formally, in an agreement by email), or through a blanket permission (i.e. no individual rights are listed but rather reference is made to all necessary rights, the rights, or similar wording).
However, such blanket formulations are often ineffective, meaning that the question of which rights were actually granted no longer depends on what was agreed but rather on the outcome of interpreting the purpose pursued by the parties. As a tool for such interpretation, the law offers the principle of purpose-based transfer.
Statutory licence
For certain types of use, the law itself stipulates that these uses are permitted by statute, while the authors or holders of related rights must nonetheless be remunerated for them. This is referred to as a statutory licence (or: a limitation of the exclusive copyright to a mere right to remuneration). An example of such a statutory licence is the use of copyright-protected texts for private copying, which does not require the rights holder’s consent. This exemption from the need for a contractual licence is set out in Section 53 of the Copyright Act, which removes the acts listed there from the authors’ control but in return establishes a right to appropriate remuneration from device manufacturers (see Section 54 of the Copyright Act).
Use without a licence
Use without a licence refers to cases in which the law determines that no permission is required – meaning that copyright protection of the work or performance does not apply in those instances. In such cases, authors do not have any remuneration rights. Such exceptions to copyright protection include use for the purpose of quotation or for the purpose of pastiche.
Right to quote
The right to quote serves the purpose of intellectual engagement with existing works and therefore allows third-party works or excerpts to be incorporated into one’s own work without needing permission.
This includes the right to reproduce, distribute, and communicate a published work to the public for the purpose of quotation provided that the extent of use is justified by the specific purpose. This is particularly the case if
- individual works are included in an independent scholarly work to explain its content provided they have been published
- excerpts from a work are quoted in an independent literary work provided the original has been published
- excerpts from a musical work are quoted in an independent musical work provided the original has been published
The use of an image or other reproduction of the quoted work is also permitted under the right to quote – even if that reproduction is itself protected by copyright or a related right.
When quoting, it is important:
- that the work being quoted has already been published
- to always indicate the source of the quotation
- not to alter the material quoted
- to quote only to the extent necessary
As a rule of thumb, the extent of the quotation should follow the principle: “as much as necessary, as little as possible” to fulfil the purpose of the quotation.
The quotation must serve as a reference point or as a basis for discussion. There must therefore be substantive engagement with the work quoted. It must not be used as a substitute for one’s own commentary or argument.
In the case of artistic use, the artistic intention must also be taken into account. A more extensive quotation of another artistic work may therefore be permitted if it forms the basis of artistic engagement – for example, the inclusion of passages from a play by Bertolt Brecht within another play. A limit is reached where quotations are used merely to embellish the work.
A distinction is made between long quotations and short quotations.
- In the case of a short quotation, only an excerpt from a work is quoted (e.g. brief scenes from a film or a few pages from a book).
- A long quotation involves the reproduction of an entire work. According to Section 51 sentence 2 no. 1 of the Copyright Act, this is initially permitted without further conditions only in scholarly works.
Outside of academic contexts, the use of an entire work is sometimes allowed if the purpose of the quotation cannot reasonably be achieved in any other way. Through the concept of the “extended short quotation” or “abridged long quotation” – a construct developed in case law – the use of an entire work, particularly images, illustrations, and similar materials, is often still possible. For example, in the case of an image, it is practically impossible to quote it without showing the entire image. Since the complete use of a work is only meant to be permitted in exceptional cases, an individual assessment is made to determine whether unlicensed use would unduly restrict the author’s rights.
Pastiche
Copyright-protected works may be used without the author’s consent if the work is used for the purpose of pastiche. This is governed by Section 51a of the Copyright Act.
In the fields of music and literature, a pastiche is the stylistic imitation of a pre-existing original work in such a way that the original remains recognisable within the new work created through the pastiche.
The original work may be adapted or placed in a different context. The modification of a copyright-protected work is, in fact, characteristic of a pastiche. The statutory provision in Section 51a of the Copyright Act permits the adaptation of the original work and thus limits the author’s adaptation right according to Section 23 of the Copyright Act.
Classifying a work as a pastiche therefore first requires that it reflects an engagement with a pre-existing work to which it alludes. At the same time, it must differ sufficiently from the original work – unlike a plagiarism.
Examples of pastiche include remixing, sampling, fan art, fan fiction, or contemporary forms of communication such as memes, GIFs, and mashups. Since the legal provision on pastiche only came into force in summer 2021, many questions remain unanswered. On 14 September 2023, the German Federal Court of Justice (BGH) referred a case to the Court of Justice of the European Union (CJEU) seeking clarification on the precise meaning of pastiche. The decision of the CJEU could have major consequences for the art world if the Court adopts a broad interpretation of the term, potentially bringing a wide range of artistic expressions within the scope of the pastiche exception.
Principle of purpose-based transfer
If the individual rights of use are not (validly) granted, the Copyright Act applies the purpose of the agreement as the determining factor:
“If the types of use are not expressly specified individually when a right of use is granted, the scope of the right is determined by the purpose of the contract as understood by both parties”.
If, as is often the case in practice, no written agreement is made between the parties regarding the granting of rights of use or if, for example, the theatre is granted “all rights” in general terms (which is not effective in such blanket form), the scope of the rights granted is unclear and must be interpreted.
That scope is then determined by the purpose of the contract as agreed between the parties. In the case of a performance contract, this purpose would be the performance itself. In order for the performance to take place, all rights required for the performance are, according to this interpretation, deemed to have been granted. However, this does not include the rights to stream the performance because streaming is not necessary for the performance itself – the purpose of the contract. This interpretive rule of purpose-based transfer is codified in Section 31(5) of the Copyright Act.
Example 4
If the agreed project involves producing a performance for a one-time online screening and the parties have either not specified the rights or have included only an ineffective blanket clause (e.g. “all rights remain with X”), under the principle of purpose-based transfer, the scope of rights is limited to what is necessary to fulfil the purpose of the contract. Accordingly, the work in question (e.g. the text) may be performed, recorded, and streamed once and may be adapted if required – but only to that extent.
In Example 3, the parties came together to stage a guest performance and to record the performance. Only later did the artist group decide to stream the recording.
According to the principle of purpose-based transfer, the performance and recording of the production would be permitted even without a written contract or with only a general agreement. The artists involved were aware that these two acts – the performance and the recording – were part of the agreement. These two forms of use were the reason the parties entered into the guest performance arrangement in the first place. The artist group therefore granted the venue these rights even without an explicit agreement.
However, the right to stream was not originally included according to the principle of purpose-based transfer. This is because, in the example above, the artist group considered the idea of streaming the production as part of the digital festival only some time later (i.e. after the guest performance contract had already been concluded).
§ 4 Rights to musical works
What rights (under copyright law) play a role in musical works used on stage?
A musical work (such as a melody, a song, a piece of music, or a recording) is created by one or more creators. For example, musical works combine compositions by composers and lyrical works by songwriters. If there are also artists who play the piece of music for a recording, they also contribute to the total (musical) work. Finally, recording producers are also involved because they are responsible for capturing the performance of the musical work.
Rights to such a musical work must therefore be obtained from all contributing artists and rights holders.
Whose rights must be obtained?
Example 5
A composer writes a melody, which is performed by a violinist, while a lyricist contributes accompanying lyrics. The piece – melody and lyrics – is then sung by two vocalists, and the full musical performance (the violinist playing the composer’s melody and the singers interpreting the lyricist’s text) is recorded by a freelance sound engineer. It is initially indented to stream the recording on the social media platform TikTok as part of a commercial. After the commercial has been distributed on TikTok, the commercial will also be broadcast on television in Prime Time.
The following rights of use are required:
| Composer | Copywriter | Singers | Musicians | Producers of sound recordings | |
| Rights to copy and distribute (recordisng, etc.) | In particular, the rights to reproduce and distribute the work must be obtained from all parties involved, including the singers, musicians, and the producer of the sound recordings. | ||||
| Rights to stream (make available to the public) | Additionally, the composer and the lyricist, as the authors, along with the singers, musicians, and the producer of the sound recordings as holders of related rights must all grant the right to make available to the public (i.e. streaming rights). | ||||
| Broadcasting rights | In this case, only the authors hold the exclusive right to broadcast their own work (i.e. only the composer and the lyricist are entitled to grant broadcasting rights. | ||||
| Editing rights | To use the recorded piece in a commercial, editing (e.g. shortening, cutting) will typically be required. Only the authors may grant the necessary editing rights. Performers cannot prohibit such edits and therefore do not hold or grant any rights in this regard. | Although holders of related rights do not have the same editing rights as authors, their artistic contributions are nevertheless protected against alterations that distort the performance or infringe their personal rights. | |||
| Remuneration rights | Although performing artists cannot prohibit the broadcasting of a performance that has already been recorded and streamed on TikTok as part of the commercial and therefore cannot grant the right to broadcast in this case, the singers and the musician have remuneration rights for the television broadcast. | ||||
| Participation | Performing artists must share the income from the aforementioned remuneration claims with the producer of the sound recording. The producer does not have an independent right to remuneration from the user of the artistic performance but is entitled to a share of the proceeds. | ||||
© Kanzlei Laaser
Where must these individual rights be obtained?
If artists have not commissioned third parties to manage their rights (e.g. collecting societies, music labels, or music publishers), the rights must be obtained directly from the respective authors or performing artists.
However, this is rarely the case. As a rule, composers are members of GEMA or represented by a publisher. Where applicable, singers may be under contract with a label that manages their rights. It must therefore first be clarified who holds the rights.
Example 6
In productions, a composer is often commissioned to create the music and, if needed, to record it. Alternatively, existing recordings are used on stage. In either case, it is essential to determine who holds the rights.
Collaboration with a composer
In the case of a composer’s own composition
In the case of contracts with composers, all rights that the composers have are normally granted (in particular the performance right or recording right).
However, if composers are members of GEMA, they can no longer exercise certain performance rights themselves (e.g. part of their own performance rights) because they have transferred these rights to GEMA for collective management.
This concerns primarily the performance rights to musical works performed in concert (in the form of a concert). These are the “small rights”, which GEMA obtains from its members. In contrast, the “grand rights”, which arise when musical works are used in stage productions, do not lie with GEMA but rather with the author – even if the composer is a member of GEMA.
If the case involves grand rights and the composer is not represented by a music publisher, the rights must be obtained directly from the composer.
In the case of GEMA membership and when it concerns the concert performance of a musical work (small rights), the licence for the performance must be obtained from GEMA.
The following rights must also be obtained from GEMA:
- The right of reproduction
- The right to broadcast (radio and television)
- The right to make available to the public by means of sound and video recordings
- The right to make available to the public (streaming via platforms, for example)
To obtain these rights from GEMA, the relevant musical works must be registered with GEMA in advance of their use. GEMA then grants the necessary rights for the specified type of use (e.g. a theatrical performance).
Use of third-party music
In some instances, it may be possible to avoid clearing rights if the use of the third-party music qualifies as a quotation or a pastiche.
Example 7
Composers sometimes wish to incorporate third-party music into their own compositions – for example, by inserting a recording of Britney Spears into their own work. Using even a small portion of third-party music in a new composition may constitute either an adaptation of the original music or a reproduction of the original sound recording. In such cases, clearing the rights is often quite difficult because the rights must be obtained from record labels (related rights of performers and producers of sound recordings) and music publishers (rights of composers). In such cases, rights cannot be obtained from GEMA because adaptations are involved and GEMA has not been granted licensing rights for such uses.
Playback from tape
If a pre-recorded musical work is used in its entirety (not just excerpts; see Example 8 above) in a stage production, it is necessary to determine who holds the rights required for the use of the music in the performance.
Again, it is important to distinguish between the different rights holders: composers who are GEMA members, composers who are not GEMA members, lyricists, performing artists (singers, musicians), and producers of sound recordings. Below, we address only the process of obtaining rights from composers and performing artists:
Composers who are GEMA members
The rights of composers who are GEMA members are generally obtained through GEMA. However, certain rights – in particular, the grand right (i.e. the right to stage a dramatic performance of the musical work) – are excluded. Further details on rights not administered by GEMA can be found in this article.
Composers who are not members of GEMA
Composers who are not members of GEMA may grant rights directly, provided they have not assigned those rights to a music publisher. If the rights have been assigned to a music publisher, the publisher is responsible for granting the relevant licences.
Performing artists
Performing artists (singers, musicians) either manage their rights themselves or have assigned them to a record label for exploitation.
Under the structure of rights established by the Copyright Act, performing artists are not permitted to independently control all types of use of their performances. Unlike authors, performing artists have only a few exclusive rights in their artistic performances, in particular, the right to reproduce and the right to distribute, the right to make available to the public, and, where applicable, the right to broadcast. In addition, the Copyright Act grants performers remuneration rights for certain other types of use that they cannot prohibit. If, for example, a recorded performance is played on stage, the performing artists are entitled to such remuneration rights. For this type of use, a user does not have to obtain a license from the performers but does have to pay a remuneration.
The performers who are GEMA members also receive license fees that GEMA has collected for them.