In practice, specifics pertaining to individual sectors must be taken into account in the application of copyright law. This may be due to the fact that collective authorship is more common in one field than in others, for example, or that the role of ancillary copyrights is more pronounced in one artistic field (e.g. performing arts and film) than in others, where ancillary copyrights usually only arise during subsequent exploitation, if at all (e.g. in literature).
Music at events and the GEMA presumption
There may be numerous rights owners when musical works are performed. If some of these rights owners are GEMA members (or members of other international collecting societies), GEMA charges a fee for the use of the works. This fee depends on the size of the event space and the type of use.
Even free events are subject to GEMA fees. In these cases, a minimum usage fee is charged. The prerequisite is that the event is open to the public. A closed event by a theatre association that performs only for members is not considered public in most cases. The situation is different if the event is also advertised to non-members.
If none of the rights owners is a GEMA member (e.g. GEMA-free music), the authors must be contacted directly. No fees are due if the music is already in the public domain, but the organiser must provide proof of this. Initially, the "GEMA presumption" applies, i.e. the presumption that every musician is represented by GEMA.
Since GEMA is obliged to grant the rights insofar as it administers them (exceptions include synch right and "großes Bühnenrecht", i.e. the right of public theatrical performance of a work), a performance does not need to be approved, but merely registered. There are only a few exceptions to this, for example if music is chosen as the theme for an election campaign event. In this case, the author may object to the use on the basis of their moral right.
The organiser is responsible for completing the registration process. To this end, artists should provide the organiser with a list of titles to which they can refer when registering with GEMA. Ideally, a notification should be issued even if the event is not subject to GEMA fees. This avoids lengthy disputes with GEMA. If you do not register the event (by mistake) and GEMA becomes aware of the situation, you will not be issued a warning but will instead usually have to pay double the GEMA fees. This penalty has long been upheld by the courts and therefore cannot be challenged.
When do I need the permission of the author or another entitled party (publisher) for performances?
Firstly, you will need it if the author is not a member of GEMA. In this case, permission must be requested directly from the rights holder – simply registering the event with GEMA is not sufficient.
Secondly, permission is required whenever you wish to change a title in such a way that it constitutes an adaptation. Whether this applies must be determined on a case-by-case basis – an insignificant alteration to the arrangement will usually not constitute an adaptation, while adding new parts or mixing the piece with another text will always be considered an adaptation. In such cases, it is not sufficient to merely report the adaptation. The right to edit is not administered by GEMA and must therefore be requested directly from the rights holder, publisher or author – and also from the label or artist if samples are used. Possible exceptions to this may include pastiche or parody, but it is currently still unclear when exactly one can invoke these types of work.
Additional exception: 'großes Bühnenrecht' (i.e. the right of public theatrical performance of a work)
The area of copyright known as "großes Bühnenrecht" is also important in the area of music. If music is used for a "stage performance", not just as a mere part of an event, the consent of the author or their publisher is required. Therefore, any event using someone else's music should be reviewed to determine if there is a common theme connecting the pieces besides the mere musical performance. If the pieces of music tell a story or are connected through dance or by a presenter, it is reasonable to assume that the event is a stage performance and that the performance rights are therefore not administered by GEMA. Each case may be different, so careful examination is required.
Use of music in films
As an author usually transfers this production or synch right to their publisher, these rights must be requested from the publisher.
A musician plays in an orchestra that performs nationally and internationally. (The rights to the compositions played belong to the composers unless they are in the public domain.) What rights does the musician have with regard to his performance? Where and how can the musician assert his rights?
Orchestra musicians are usually employed as performers. Their ancillary copyrights are transferred to the orchestra or the institution in return for a fee. In the case of German orchestras, the entitlement to such rights is based on the collective agreement for musicians in cultural orchestras, among other things, or otherwise on the employment contract. In the event of non-equitable remuneration, the musician must assert their claim against the orchestra or theatre. There are also a number of associations that support with enforcing equitable compensation, such as the German Orchestra Association.
A performer works in a collective that develops its pieces together. What rights does she have? Where and how can she assert these rights? What should generally be considered in the case of jointly developed plays, songs, artworks, etc.?
A performer does not necessarily hold copyrights, but only ancillary copyrights (see also Ancillary copyrights of performing artists). If she has co-developed the piece, this may lead to joint authorship.
In the case of joint authors, Section 8 German Copyright Act applies. The rights set forth in this Section can only be exploited jointly. In case of doubt, the rights are regulated by contract between the participants, e.g. a partnership contract. Therefore, it is always advisable to conclude a written contract that specifies all rights and obligations. This is especially practical if one of the participants leaves.
Theatre productions, including employment
Theatre productions involve the interplay of several arts, i.e. also several authors. What rights does the set designer have, for example, if the play goes on tour internationally, is recorded for television or streamed on the net?
The stage designer can be an author. Usually, the rights of use are transferred contractually to the person who organises the tour. If the stage designer is employed, the rights are transferred to the employer by law. However, as an author, she has the right to have her name mentioned. Furthermore, she has the right to prohibit substantial changes (adaptations) to the stage design. In case of doubt, ownership of the stage design itself is transferred to the organiser.
The scope of rights that an author transfers to their publisher is defined in the Theaterverlagsvertrag (contract with a theatre publisher). This contract usually only transfers rights to a dramatic work, musical drama or dance art work to the publisher. The rights may be assigned to different publishers for certain territories, or certain rights (e.g. film rights) may be excluded.
Großes Bühnenrecht (i.e. the right of public theatrical performance of a work)
Protection of material works vs. production art
A dramatic play of a still living author is performed under his/her name and the original title in an extremely shortened version that is contrary to the intended message. What rights does the author have? What interpretative liberties may the director claim?
The abridging of a play is not permitted if the author has not granted the adaptation right. Likewise, the right to public communication in the form of the stage right (pursuant to Section 15 Abs. 2 Nr. 1 in conjunction with 19 German Copyright Act) is also affected. Furthermore, distortion took place because the intended message of the author was not preserved.
What freedoms does the director have then to express his/her art and grant interpretive liberties to the actors/actresses? This tension between protection of the work and production art is a difficult to define gray area that often pushes the boundaries of copyright law. It is therefore difficult to make universally valid statements. It is true, at least, that one always needs an adaptation license if one considerably shortens the original. At what point is the interpretation of an existing work an action relevant to copyright that goes beyond the performance right pursuant to Section 15 Abs. 2 Nr. 1 in conjunction with 19 German Copyright Act? A less than satisfactory but probably true statement in this case is that the provisions of the Copyright Act do not sufficiently take into account the special situation in case of productions of stage works by reproducing artists. There is no legally defined freedom of interpretation of the director, but the fact is that hardly any production manages to be done without direct changes to the text, such as language smoothing, small cuts, or changes to the storyline. An adaptation and thus an action requiring consent occurs (at least in case of stage works) when essential features of the work are changed through the nature of the performance without the consent of the author. The opinion of the author determines when these essential features are affected, at least when the form desired by the director changes the essential meaning of the work
These are always individual decisions – but basically, the Copyright Act defines relatively strict limits to the interpretive freedom of the director and the actors/actresses, which can only be countered by a very wide-ranging, well-described transfer of the adaptation right. What is more is that the author’s moral rights may be affected in case of significant changes relevant to the right to prohibit distortion according to Section 14 German Copyright Act.
The right of resale ensures that artists have a legal right to participate in the resale of a work; the legal basis for this is Section 26 German Copyright Act. For every resale of a work in which an art dealer or auctioneer is involved, the artist is entitled to a percentage of the proceeds (Section 26 German Copyright Act). The right of resale is based on the assumption that visual artists – unlike creators in other fields – are highly dependent on the sale of their works in economic terms. However, such works are often sold at an early stage so that owners, gallery owners, and auction houses rather than the artists themselves profit from a later increase in value. The resale right grants the authors a percentage share in the resale price based on the purchase price under certain conditions. Resales between individuals are not subject to the resale right.
The resale right can only be asserted through the involvement of a collecting society.
The exhibition right, i.e. "the right to display in public the original or the copies of an unpublished artistic work or an unpublished photographic work" (i.e. a copyrighted photography)" (Section 18 German Copyright Act). Due to its weak definition – namely, its restriction to unpublished works – this right is virtually of no relevance.
'Because a publication, in the copyright sense, has almost always already happened, when it comes to organizing exhibitions and giving the artist an appropriate share (for the term "publication", see also Section 15, 3 German Copyright Act). This means: The artist can usually no longer transfer any exhibition (copy)rights, or vice versa, the exploiter does not even need to ask for them. Therefore, the artist cannot insist on an "appropriate compensation" for this transfer, at least not with reference to the German copyright. At present, he/she will still have to negotiate this remuneration individually, possibly also with the help of guidelines on exhibition remuneration, which have already been published in various places.
Advertising exhibition/ catalogue illustrations (Katalogbildfreiheit)
In some countries, works may be reproduced in catalogues without the need to ask the artists for permission or pay them any remuneration (a list of countries can be found here). In Germany, the right to use images for advertising purposes (Section 58 German Copyright Act), the so called Katalogbildfreiheit, permits the reproduction, distribution and upload of visual artworks that are publicly exhibited or for public sale by the organiser for promotional purposes. This right expires with the end of the event that is being advertised. It is also permissible to reproduce and disseminate the aforementioned works in directories published by public libraries, educational institutions or museums in connection with the content or term of an exhibition or for the documentation of inventory – i.e. also beyond temporary exhibitions – where no independent commercial purpose is being pursued. Furthermore, it is generally permissible to reproduce individual works as part of current reporting, for example exhibition openings, theatre performances or exchange programmes, without having to obtain permission.
Right to reproduce works in public places
According to Section 59 German Copyright Act, the right to reproduce works in public places permits reproduction, distribution or public communication of works that are permanently located along public ways, streets, or places – such as works of architecture or sculptures – by means of painting, photography, or film; e.g., to produce and sell postcards. For works of architecture, this provision applies only to their external appearance.