How extensive are the copyrights to characters

§ 24 UrhG - Free use

(1) An independent work that has been created with free use of another's work may be published and exploited without the consent of the author of the work used.

(2) Paragraph 1 does not apply to the use of a work of music through which a melody is recognizably taken from the work and used as the basis for a new work.

I. Basics

Artistic and intellectual creation has always been based on what surrounds people. The inspiration of an artist has an origin, be it in nature, in the dream world of the artist, in an ancient statue or in the fabulous world from long forgotten days. No creation arises out of nothing. If a work arises solely from the imagination and the thought world of its creator, then this is ultimately also based on the perceptions and influences from its environment. Man always ties in with the knowledge of his ancestors. But he does not limit himself to the sources of the past, he also makes use of those of the present and the future. Great achievements and ingenious ideas often get around quickly and quickly find approval, but also imitation. This is what drives the creation process. By processing the ideas of our fellow human beings, we achieve better cultural and scientific progress. The fruits of our labor are the result of a constant exchange. For this reason, we need enough leeway that allows us to take up the ideas and creations of others. Because they too are part of our perception, part of our life and thus part of what we generate our own creative power from. On the other hand, authors need comprehensive protection for their services. With its function, copyright protection serves to promote creative work by granting authors a monopoly on exploitation, as well as cultural and scientific progress. At the same time, copyright protection restricts the freedom described above by depriving the author of access to a certain part of his environment - namely to the protected works of other authors. There are thus two principles that both promote the creative process, but restrict each other. Both are essential. It is the task of copyright law to create an appropriate balance.

II. Free use and processing

The redesign, also called free use, describes the area in which the author can move freely. For him, it marks the limit up to which third-party copyrights can claim their validity. The Machining (§ 23 UrhG) always extends to both sides of this limit. It is subject to the copyright of the original author, at the same time it evades this and creates a new right for the processor. Therefore, there are two copyrights to the processing (for more details see §§ 3, 23 UrhG). It stands between duplication - the mere replication of a work - and free use - the creation of a new and independent work.

III. Concept of free use

Free use is an independent work that can be distinguished from what is used. It must therefore be a personal intellectual creation within the meaning of Section 2 (2) UrhG. The free use is completely new to the work used and is therefore to be seen as an independent new work compared to it (BGH GRUR 1963, 42 - Streets - yesterday and tomorrow). The foreign work only serves as inspiration. Compared to the previous work, free use shows such a degree of independence and individuality that its features fade in the new work and take a back seat (BGH NJW 1958, 460 - Sherlock Holmes). When editing, however, the features of the work used remain clearly recognizable and are formative for the character of the editing.

The regulation of § 24 UrhG only refers to original works or parts thereof that are protected by copyright. If a work is already in the public domain, § 24 UrhG does not need to be applied; anyone can use works in the public domain in any way. If parts of a used work are in the public domain, the new author can also use them at will, only the non-free parts have to fade in his representation.

The demarcation to editing is not always easy. It is not necessary that the used work is completely overwritten by the redesign. His character traits may still be recognizable, but they must clearly step back behind the new performance and submit to it. How high the requirements for the redesign are also depends on the level of design of the work used. The more individual and complex the work used, the more extensive and original the new creation must be. The lower the degree of originality the work used has, the more likely its character traits will fade. For example: the character traits of a painting, which consists of a simple, blue square on white canvas, will fade very quickly due to the low design height if another artist uses it in his work, for example the Mona Lisa by Da Vinci, which one has a very high degree of design (the Mona Lisa, of course, has the special feature that it is already in the public domain and can therefore be used freely anyway without the regulation of § 24 UrhG being important). The more complex and multifaceted a work is, the higher the requirements resulting from § 24 UrhG.

If a work is transformed into another, alien work category, free use can usually be assumed. For example, when a poem is transformed into a painting or a fable into a melody. In the case of transfers into identical or related work categories, on the other hand, there is more of an adaptation. For example, when repainting a photo or filming a novel. However, this does not apply without restriction. If the subject of a photo, for example a portrait, is processed in a painting, whereby the painter only depicts the portrait as one of the many characters represented in a picture story, and in this way puts it in a completely new context, the character traits of the photographic work of of the new scene - they fade away. As a rule, the delimitation takes place according to the specific circumstances of the individual case.

IV. Parody and Free Use

1. Delimitation according to the distance criterion of the BGH

As part of the assessment of special art forms, such as parody in particular, the BGH has developed special delimitation criteria. The parody is characterized by the fact that the character traits of the parodied work do not fade. On the contrary, in order to parody a work, it is important that the parodied work remains clearly recognizable. If the character traits in the parody faded, the viewer would not be able to understand them. In order to be able to artistically pull another work through the cocoa, it has to remain recognizable. A fading of the character traits is therefore alien to the parody. According to the principles described above, parodies are therefore to be classified as dependent adaptations and not as free use. However, since there is a social and cultural need to enable parody as an art form, the BGH has developed additional criteria that should make it possible to accept free use regardless of the fading of the character traits of the work used. This should also be possible against the declared will of the author of the original work, because he will seldom agree to a parody. In the case of the acceptance of a dependent editing, however, this would have to give his consent, which would enable him to censor unpleasant criticism in the form of a parody and even to sweep it under the table. In order to prevent this, the BGH ruled that the necessary distance to the borrowed character traits of the work used for free use can also be given by the fact that the new work in the case of clear adoptions in the design, as is typically associated with the parody maintains such a large internal distance from the older work that the new work is to be regarded as independent by its nature. So it depends crucially on an inner distance, which is only given if the new work deals with the older one, as is the case, for example, with a parody. The BGH wants to apply a strict standard (BGH, judgment of March 11, 1993 - I ZR 263/91).

2. Criticism of the case law of the BGH

This case law is exposed to various points of criticism. It blurs the distinction between free use and dependent processing (§§ 23, 24 UrhG). While the criterion of the fading of the character traits enables a technically clean separation, the reference to the inner distance discards the sharpness just found in the separation of free use and processing and thus makes a delimitation unnecessarily difficult. On the one hand, this is due to the fact that a parody typically has the characteristics of an adaptation. With the delimitation criterion of inner distance, all edits that are parodies are excluded and artificially drawn into the circle of free use. On the other hand, because when it comes to the admissibility of a parody, quite different interests often play a role, which actually come into play on a different level of evaluation. For example, one wants to exclude parodists who have chosen this art form solely for the reason to make the success of another work fruitful for themselves from the privilege of § 24 UrhG. One also wants to protect the interests of the author from disproportionate impairment. That is why the BGH applies a strict standard. Since these interests, which are actually of a judgmental nature, are placed on the factual level, the latter is overwhelmed. The delimitation on the actual level is unable to incorporate such an abundance of evaluative criteria without this being at the expense of their sharpness and their safety in handling. The balancing of interests carried out by the BGH at the level of the offense should rather be carried out separately. As a result, a precise contour would be preserved and the interests of the authors could be better taken into account, because one could undertake an appropriate and differentiated weighing of interests free of the compulsion to have to sell them in the form of a delimitation of the facts.

Finally, the "strict standard" demanded by the BGH is clearly exaggerated. The ECJ has even relativized the distance criterion with which the BGH demands a dispute with the parodied work. In its "Deckmyn" judgment, the European Court of Justice states that the parody does not have to concern the original work itself, but can also be used to convey completely different thoughts than the critical examination of the original work. It is not even necessary that the parody is assigned to a person other than the author of the original work (ECJ ZUM-RD 2014, 613 Rn. 33; Specht / Koppermann in ZUM 2016, 23).

3. Parody and freedom of expression

The first step towards a balanced solution to the problem is to recognize the parody for what it is, namely an adaptation within the meaning of § 23 UrhG. The parody thrives on the proximity to the work used; the more precisely it reproduces it, the easier it is for the viewer to recognize the relationship to the other work that constitutes a parody. It is artificial and contradicts reality to classify a parody as free use within the meaning of § 24 UrhG. The desired result of making use free must be achieved in another way. The law does not offer a solution for the parody. However, it does not follow from this that parody is fundamentally prohibited. On the contrary. Parody and similar forms such as parody, satire or caricature are an expression of the freedom of expression of Article 5, Paragraph 1 of the Basic Law. The fundamental right to freedom of expression enjoys a particularly high status in our legal system, as it is one of the pillars of our constitution as an outgrowth of the principle of democracy; without it, democracy as a whole would be called into question. The Federal Constitutional Court has already determined this paramount importance of the fundamental right to freedom of expression several times (see e.g. BVerfGE 7, 198, 208: "As the most direct expression of the human personality in society, the basic right to freedom of expression is one of the most noble human rights of all ... It is absolutely essential for a free, democratic state order ..."). The parody must therefore be possible in principle. The legislature's failure to regulate parody in the Copyright Act must therefore be overcome in another way. In the area of ​​criminal law, freedom of expression is generally recognized as a justification for offenses such as offenses. In copyright law, too, it makes sense to place it on the level of justification. The justification in copyright law is based on the so-called limitations of copyright law (§§ 44a UrhG ff.). Basically, the barriers are finally regulated and, moreover, are to be interpreted narrowly.

Sometimes it is suggested to treat the parody according to the rule of the right to quote (§ 51 UrhG) and to justify it in this way. However, the right to quote does not apply to the parody.On the one hand, quotations are characterized by the fact that they only reproduce passages of a work, while the parody typically has a work as a whole as its subject; and are not used in practice. Furthermore, it contradicts the reality of life and the natural sense of language as well as the rules of art and science to classify a parody as a quotation. A quotation accurately reproduces a foreign work (in parts), while a parody always alienates and distorted the reproduced work and does not guarantee the authenticity of what is reproduced, as the quotation does. Finally, other considerations of interests play a role in the quotation, which are also reflected in the legal regulation, so that for this reason alone it is not suitable for dealing with cases of parody.

The barriers of copyright thus do not offer an adequate solution to parody. However, the constitution requires a space in which parody and related art forms, which are characterized by the expression of opinion, criticism and debate, can exist free of constraints and independent of the consent of those in the focus of the dispute. Due to the primacy of the constitution over the simple legal regulations of the UrhG, the fundamental right to freedom of expression from Article 5, Paragraph 1 of the Basic Law takes precedence and forms an independent justification. Copyright, which finds its constitutional basis in Article 14 of the Basic Law as well as in the general right of personality in accordance with Article 2, Paragraph 1 and Article 1, Paragraph 1 of the Basic Law, has to give way to the fundamental right of freedom of expression, which is predominant in its importance for the free democratic basic order. As a result, the author's consent, which is normally due to processing, is unnecessary. However, the individual cases must always be weighed up. The interests of the author and those of the parodist must be weighed against each other. If the interest of the author is inappropriately impaired, it may be necessary for the parodist to pay the author appropriate compensation. In individual cases it is also conceivable that the basic rights of the author prevail, for example if the parody would lead to a violation of the rights of the author that would no longer be acceptable with reasonable assessment. In this case, the author retains the privilege of consent under Section 23 UrhG, with the result that he can take action against the parody or prevent it (Sections 97 (1), 23 UrhG).

The Spanish UrhG (Ley de Propiedad Inteleclual, LPI) also offers a similarly differentiated solution, albeit not on the level of justification. In Art. 39 LPI "Parodia" it says: "No será considerada transformación que exija consentimiento del autor la parodia de la obra divulgada, mientras no implique riesgo de confusión con la misma ni se infiera un daño a la obra original oa su autor. " Correspondingly, this means: the parody of a published work is not regarded as an adaptation that requires the consent of the author; as long as it does not involve the risk of confusion with the original and does not harm the original or its author. This makes it clear that the Spanish legislature also assumes that the parody is, by its nature, a dependent processing. The Spanish legislature also assumes a fundamental priority of freedom of expression by initially exempting the parody from the consent of the author. With the further regulation, the interests of the author are adequately taken into account.

Of course, legal regulation is preferable to justification with the help of freedom of expression. On the one hand, this creates clarity and legal certainty. On the other hand, the difficulties associated with weighing up fundamental rights are avoided.However, it is wrong, like the BGH, to try to break open provisions in the existing law that were not intended for such cases and that have a different concept and to squeeze the open problems into them. This is because the legislature is diverted from its need for action by being served an apparently existing regulation of the problem. Article 5 (3) k of Directive 2001/29 / EC offers an express opportunity to give parody and caricature a special legal position.