In principle, a right of use (a license) must be obtained for any use of a work. Either the use is legally permitted – i.e. a limitation of copyright applies – or it requires the permission of the author and/or possibly other parties or rights holders (see also the additional information on individual exploitation rights and the granting of rights of use).
The complexity of productions must be taken into account, especially in the fields of the performing arts or music. Parties with whom rights must be clarified may include authors and/or their publishers as well as performing artists, event organisers or producers of sound recording media and films who are entitled to ancillary copyrights. Under certain circumstances, the moral rights of extras and viewers, for example, must also be taken into account. As a rule, rights of use in the areas of copyright and ancillary copyright must be obtained at the same time.
When using a work, you should also check whether the rights of the rights holder are being represented by a collecting society, i.e. whether the collecting society may grant the required rights. Search functions are sometimes available on the websites of the collecting societies, which can be used to check whether artists are being represented by the collecting society and, if so, which rights are covered by such representation (e.g. VG Bild Kunst- only available in German). Nevertheless, it is best to also contact the artist, their publisher or their agency to be on the safe side.
In most cases, licensing rights of use (see also the Copyright Checklist) is the best way to avoid litigation.
A German media artist would like to use excerpts from a video dance performance by a British artist for his installation. The British artist is not a member of any collecting society.
Since the British artist manages his rights pertaining to the dance performance independently, the German media artist should obtain written permission from him to use the dance performance in his installation. In the request, the German media artist should specify the precise excerpts from the performance he wishes to use and propose a fee in return for permission to use them.
A Brazilian theatre that has seen a German play at a festival wishes to edit and translate the text of the play in order to bring it to Brazil for its Brazilian premiere. The author is not represented by any publisher or collecting society.
Both the editing of the text and the translation of the play into another language constitute changes to the original work that require permission. Since the German author of the play exercises his rights to the play completely independently, he may respond to the Brazilian theatre's request in a number of ways:
a) authorise the performance of the play and the adaptation of the text,
b) authorise the performance of the play but not the adaptation of the text,
c) refuse to authorise the performance of the play.
Regarding a): The authorisation should detail the changes to which the German author agrees and list them individually in an appendix. It should also expressly exclude additional changes beyond those listed in the appendix. If the exact specifications of the authorisation are not observed, the author may prohibit the performance and, if actual damages have been incurred, assert a corresponding claim.
Regarding b): The authorisation may be limited to the unedited German version.
Regarding c): In the event of non-compliance, the Brazilian theatre may be prohibited from any further performance/use of the piece through a cease-and-desist letter, and the artist may claim an additional fee and possibly seek compensation for damages.
The party responsible for clarifying rights depends on the type of event or even the type of use, etc. It is strongly recommended that you make precise contractual arrangements.
In principle, it is advisable for the person responsible for an event, for example, to clarify with all those involved which rights may be affected and stipulate contractually what may be used how and by whom. The person responsible may be the artist, the manager, the producer or the booker, possibly even the event organiser. Producers who work internationally should best draw on national subsidiaries or cooperation partners for the clarification of rights. If this is not possible, experts should ideally be commissioned to review and clarify the rights.
All rights for the respective territories must be clarified before starting an international project. The producer bears the economic and the legal risk in the event that rights are violated. While the organiser is also responsible if rights are violated, they will usually request confirmation that all rights have been obtained.
When producing or organising a tour, the rights should be reviewed at every stage of the process. This applies, for example, to stage design, costume design, music and all other areas.
By the way: anyone can be held liable for rights infringement, as there is no such thing as the bona fide acquisition of rights. It is not enough to have been contractually assured that the necessary rights are available; each user is obliged to verify the availability of the rights independently.
Good to know: Copyright is almost always excluded from legal expenses insurance.
In Germany, the moral rights and exclusive exploitation rights of authors are generally not transferable (only inheritable). However, authors may grant third parties rights of use to their works. These rights of use may be granted as a non-exclusive right or as an exclusive right, and may be limited in respect of content, space, or time. An explanation of non-exclusive and exclusive rights of use can be found here.
If a copyrighted work is to be used, a contract must be concluded between the author or rights holder and the user. Although a verbal agreement is sufficient, a written contract should be concluded for better verifiability. This is especially true for larger productions and projects or situations where there is potential uncertainty about the types of use.
The granting of rights of use, in turn, is based on the possible forms of exploitation, i.e. the individual types of use or forms of exploitation should be described in detail in the contract. Rights are transferred for a specific purpose: unless the exact rights being transferred have been specified, the types of use to which the agreement extends are determined in accordance with the purpose envisaged by both parties to the contract (Section 31 (5) German Copyright Act).
Once rights have been acquired, the parties should once again determine whether the rights have also been granted for each specific use in question and are still valid at that time.
A blanket statement such as "the company/theatre is hereby granted all rights to use the choreography" is not sufficient and will quickly lead to legal uncertainty.
Copyright law in Germany is subject to a number of limitations – some of them EY-wide. These permit certain uses of works in the interest of the general public and by law. This means that it is generally not necessary to obtain individual permission for the use of the works in question. Nevertheless, such use may be subject to payment in many cases – either by the users themselves or in the form of fixed amounts, which are sometimes hidden in the retail prices. For example, the lending of books, CDs and DVDs in libraries is paid for via library royalties, while private copying is paid for by price surcharges on devices used for copying (copiers, CD and DVD burners). Collecting societies in Germany administer these funds and distribute the money to the authors who have concluded collecting agreements with them.
Duration of copyright
One of the most important limitations is that of the duration of copyright to 70 years after the death of the author (Section 69 German Copyright Act) or, in the case of jointly created works, to 70 years after the death of the longest-living co-author (Section 65 German Copyright Act). After this period, the work is in the public domain: it may be exploited without the need to obtain any additional rights (if it is the unedited original work). Copyright pertaining to anonymous and pseudonymous works expires 70 years after publication.
Right of quotation
Section 51 German Copyright Act, in turn, permits the reproduction, distribution and public communication of a previously published work for the purpose of quotation. The right of quotation is also permitted in other works. For example, film quotations, i.e. short excerpts from a film, may be included in another film.
The "purpose of quotation" is important in this context: not every use is automatically a permissible quotation. The quoted work must contribute to explaining the content of the work in question (such as a stage show or play). In other words, the quotation must substantiate the message of the play – purely optical or decorative uses are excluded.
The right of quotation does not necessarily extend to other rights, such as the persons depicted in a photograph (moral rights) or the use of sound carriers protected by reproduction right (ancillary copyright).
Every quotation must be identified and the author named.
At one point in a play, a photograph by a well-known photographer is used. The quoted work may only be used to the extent necessary and must be identified as a quotation. The author must also be named. One way of doing this is to mention it in the programme.
Adaption vs. caricatures, parodies and pastiches
The right to adapt the work also falls under the exclusive exploitation rights of the author. This means that the author must be contacted to sign off on the publication and exploitation of adaptations, and, in some cases, even the mere production itself (Section 23 German Copyright Act).
A number of important were made in this regard in 2021. For example, the law now states: "If the newly created work maintains sufficient distance to the work used, this does not constitute adaptation or transformation (…)" (ibid.) for the publication or exploitation of which consent would have to be obtained. Following this amendment, the previously applicable "free use" was removed from the German Copyright Act.
In addition, new provisions on caricatures, parodies and pastiches have been introduced under the limitations of copyright law: In principle "it is (now) permitted to reproduce, distribute and communicate to the public a published work for the purpose of caricature, parody or pastiche" (Section 51a German Copyright Act) and: "Where necessitated on account of the purpose of the use [caricatures, parodies and pastiches], alterations to the work are permitted" (Section 62 German Copyright Act).
However, (as of May 2023) it is still not yet possible to assess conclusively how these updates will actually play out in practice, and particularly to determine what falls under the term "pastiche". While the new Act on the Copyright Liability of Online Content Sharing Service Providers introduced specific requirements for non-commercial user-generated content on online platforms (keywords memes and upload filters), "pastiche" is still not sufficiently defined to speak of a "right to remix" for adaptations in the artistic/professional sector beyond platforms. In case of doubt, it is better to ask before the use occurs so as to avoid subsequent litigation.
Till Kreutzer, co-founder of iRights.info and lawyer at iRights.Law, sheds light on the questions of what constitutes a pastiche in terms of copyright law and what users get out of it in a legal opinion for the Gesellschaft für Freiheitsrechte (GFF). Read the article here (in German).
Please note: Those adapting a work also enjoy copyright protection for their work if the work resulting from their adaptation also meets a certain threshold of originality. One example is translators of works of fiction. The protection period for the specific translation is 70 years after the death of the translator!
Additional limitations of copyright
Users are granted special rights or freedoms in some areas. These are shown in the following figure.
When taking and using photographs, the rights of those depicted must be taken into account. Violation of these rights may not only lead to a warning but may in some cases also triggers claims for compensation by those affected.
Even the mere production of video recordings and images constitutes an encroachment on the general personality rights. Furthermore, such recordings fall within the scope of application of the GDPR (only available in German), as far as they are not private recordings/images.
The GDPR stipulates that the mere production of digital recordings/images for commercial purposes already requires either the consent of those affected or a justification. Determining whether the legitimate interests of the concert organiser permit the production of recordings/images of a concert without the consent of those depicted requires a comprehensive weighing of interests. If the concert-goer expects such recordings/images to be produced, then such recordings/images may be permissible. Material on the GDPR shows that the legislator assumes that recordings/images at public events are permissible. As a precaution, visitors should therefore be informed on the ticket or in another suitable way that they may be recorded or that their picture may be taken at the event.
There are rules in place governing not only the recording/image itself, but also the subsequent dissemination of the material (broadcast on television, etc.). The dissemination and display of likenesses is regulated by the Kunsturhebergesetz (KUG; German Law on the Protection of Copyright in Works of Art and Photographs) (only available in German). According to case law, the KUG is still applicable despite the data protection regulations set forth in the GDPR.
Pursuant to Section 22 KUG (only available in German), likenesses may only be distributed or publicly displayed with the consent of the persons depicted. In this context, the term likeness refers not only to photographs and film recordings, but also paintings, drawings or sculptures, etc. The prerequisite is that the person depicted is recognizable. The following likenesses may be disseminated without consent:
For tours and concerts, for example, this means that the dissemination of recordings from the concert hall, where visitors are filmed as part of the crowd, is permissible. The situation is different, however, for recordings of concert-goers who are deliberately zoomed in on or of whom individual images are produced. Permission must be obtained for the dissemination of any such recordings.
Obtaining general consent via the general terms and conditions or house rules of a concert hall or theatre is likely to be ineffective, as it is difficult for visitors to familiarise themselves with such conditions in detail.
The safest way is to obtain the consent of visitors to the event to the production and distribution of recordings. This ensures, for example, that a concert video does not need to be re-edited because of a visitor objecting to the use of their likeness. If organisationally possible, written consent should be obtained in a manner similar to a "model release", where the persons concerned give their consent to the recordings/images and their specific use. In this context, any subsequent use should be described as precisely as possible.
If rights are violated, you may receive a warning. This means that the user must refrain from using the unlawfully utilized material. If the warning proves to be justified, the user must pay the legal fees of the warning party as well as damages for the use of the works. Payment of these monies does not result in a retroactively granted right of use. Subsequent licensing must be negotiated.
Also see 'What to do if rights have been infringed' here.