What is the procedure if artists are not members of a collecting society? In such cases, artists must claim and enforce their copyright of a work vis-a-vis (possibly unauthorized) users at home and abroad.
A German media artist wants to use excerpts of a video dance performance by a British artist for his/her installation. The British artist is not a member of a collecting society.
Since the British artist administers the rights to the dance performance independently, the German media artist should seek written authorization from him/her for the use of the dance performance in his/her installation. He/She should detail the excerpts from the performance and propose a fee for the use permit.
A Brazilian theater that has seen a German theater play during a festival wants to adapt and translate the text of the play for performance in Brazil. The author is not represented by a publishing company or a collecting society.
Both the text adaptation and the translation of the play into a different language constitute alterations of the original work subject to approval. Since the German author administers his/her rights to the play himself/herself, he may
a) approve the performance of the play with the text adaptation,
b) approve the performance of the play without text adaptation,
c) prohibit the performance of the play.
The approval should individually list in an attachment the changes to which the German author agrees or specifically exclude additional changes other than those listed in the attachment. If the details of the approval are not adhered to, the author may prohibit the performance and claim any actual losses incurred.
The approval may be granted only for the unaltered German version.
No approval: In the event of non-compliance, any further performance/use can be prohibited by declaration to cease and desist and (retrospective) compensation and possible damages can be claimed.
If artists are not members of a collecting society, this also means that they must enforce cease and desist claims (i.e. the unauthorized user must immediately stop using the work) and any payments of (retrospective) compensation, as well as possible damages, themselves.
A private individual in China publishes photos from a visit to Berlin on his/her website, including photographs of works of a German artist taken during a gallery tour. The artist was not informed of this and he/she does not consent to the publication.
Generally speaking, the German artist may prohibit the further use and claim (retrospective) general compensation, as well as compensation for damages (if such damages can be proven). He/She can find the responsible individual through the disclaimer on the website and may contact him/her with his/her claims via email.
Pursuing these rights will be difficult, however, because the unauthorized user is a resident of China and therefore outside the EU. Any further legal action is therefore only practical if large sums are at stake, which is unlikely in this example.
Example of the general procedure in the event of the unauthorized use of works:
An artist whose work is being used without authorization should first place great importance on preserving the evidence. For example, if an image was printed, the artist should obtain a copy of the magazine or book. In the event of unauthorized use on the Internet, the exact day and time and the web address on which the image was visible should be noted. It is advisable to ask an uninvolved witness to put down this information in writing.
After this, the person responsible for the copyright infringement should be identified. The imprint or legal notice can be helpful in the case of newspapers, magazines, books, the Internet, etc. If the website does not feature a legal notice, the owner of the site can be found through the domain name (web address) with the help of the German Network Information Center or the Internet Network Information Center. If the owner of the domain is not himself/herself responsible for the infringement, he/she can at least provide information about the person who is.
Once the person responsible has been identified, the artist should require him/her in writing to stop using the work. This should be done sending a registered letter with a return receipt, requesting that the person in question stop the unauthorized use within a certain period (at least seven business days) and obligate him/her to refrain from any further unauthorized use in the future. This cease and desist declaration may also contain a penalty clause, i.e. the opponent has to pay a certain sum to the artist every time he/she infringes on the artist’s copyright in the future.
Moreover, reasonable compensation for the previous use may be demanded. A surcharge of up to 100% for copyright infringement is acceptable in German case law.
Finally, the artist has a claim to compensation for applicable and verifiable damages.
In some EU countries, German legal claims can be enforced; i.e. a German artist has the same rights with regard to a copyright infringer living or headquartered in Belgium as he/she would vis-a-vis a German infringer. Some restrictions may apply and any claims within the EU should be enforced with the help of an experienced lawyer.
In case of copyright infringers living or headquartered outside the EU, legal action is usually only practical if exceptionally high amounts of money are at stake.
Something different may apply if the copyright infringer is located in the United States. Copyright violations are very costly and in some cases liable to prosecution in the US, so in more extensive cases it might be worthwhile to hire a US lawyer.