Authors, photographers, designers as well as architects have in common that they are not only creative on a regular basis, but also create work such as essays, songs, photographs, pictures, a specially designed interior or technical drawings which are protected by copyright. These works are often the foundation of their income. Unfortunately, such works are often copied by third parties who are trying to save the compensation costs for authors, photographers, designers or architects. Often, contracts are made anyway but ultimately terminated due to differences of opinion. However, the work created until that point of termination will be still used without consent and compensation.
The protection of these works as well as the regulations for the compensation of the creators (= the originator) of these works as well as taking measures regarding the misuse of these works is regulated by the copyright law (UrhG).
The copyright law stipulates appropriate regulations to specify the protectability and the scope of protection of a work, because not every intellectual and creative achievement leads to a copyrightable work.
In addition, it contains differentiated rules of right constellations in which the creator (= originator) may grant certain rights to third parties. After all, copyright itself is not transferable; third parties can only be granted rights of use and rights of exploitation of the work created. Generally, license agreements are concluded for this purpose. They then grant simple or exclusive rights of use.
In this context, the creator must ensure to solely grant those rights to a third party that he truly intends to accord. Further, he must take into account that he receives an appropriate compensation for the rights granted. In doing so, contractual regulations may involve the splitting of the rights and exploitation of use into certain divisions such as print media, radio and television. However, considering the distribution area, these rights may also be allocated to certain countries, to the European Union or worldwide.
Copyright further applies, when companies within the film and record industry carry out warnings to individuals or other companies due to illegal downloads from the internet through a private or company connection (so-called file sharing on peer-to -peer networks). Watching a movie or listening to any audio recording obviously requires payment, which is usually the case in movie theaters, the video store, or when buying a movie / audio recording in the store. This applies equally when downloading movies or music are from the internet.
As an originator, you have a comprehensive right to use the work you have created. On the one hand, you can consciously and intentionally allow third parties to use your work and on the other hand, prohibit third parties from using them unlawfully.
If the originator identifies copyright infringement by a third party, he is entitled to (i) omission, (ii) information, (iii) damages and (iv) refund of legal fees for the prosecution. The amount of the claim for damages depends among other things on whether an entrepreneur or a consumer misused the protected work and to what extent the work was used.
The author - usually in addition to another authorized user - has the right to persecute the unlawful use of his work by third parties. The claim for an injunction procedure may be pursued in the context of a preliminary injunction, whereby the application for an injunction is generally granted by the court on the day of the petition. If the unauthorized third party accepts the injunction in the context of a final declaration, the matter is settled in this respect. Other claims by the originator such as (i) information, (ii) damages and (iii) refund of attorney's fees can be enforced only in a principal proceeding if the unauthorized third party refuses to fulfill these claims out of court.
Due to the existing fee recommendations in many professions, among others for authors and photographers, it is usually very possible to accurately quantify the claim for damages. There are three possibilities for the originator to calculate the damage. The experience of our law firm has shown that the calculation based on a license analogy is the most common. Here, the originator is treated as if he had granted a license to use his work to third party in exchange for money.
These principles also apply to warnings by companies in the film and sound recording industry due to so-called file sharing. The peculiarity in this case is, however, that a company is only able to identify the subscriber with the implication that this person is also the delinquent (= so-called disturber). Though in our experience, the subscriber often wasn't the delinquent, but other family members in particular the children, guests of the family or even unauthorized third parties who have abused the connection, initiated the download. In this case, the subscriber does not have to be necessarily liable, which is why the respective matter should be well investigated before contacting the company that gave the warning.
We would be pleased to advise you as the originator with the question as to whether the work created by you is protectable and how it can be used. Regarding this matter, we have often created license agreements for the use of copyrighted works.
In addition, we are happy to assist you if you as the originator discover the misuse of your works by unauthorized third parties. We have already conducted a variety of legal proceedings and enforced the rights of photographers, authors and architects. Within this process, we have both applied for and led preliminary injunctions as well as principal proceedings in regional courts in Germany.
Furthermore, in a large number of cases, we have represented entrepreneurs and individuals who have been warned by companies in the film and sound recording industry because of so-called file sharing. We were able to ward off payment claims in most cases.
If you have any questions about our services or the costs that may be incurred, please contact us by phone or email. We are very happy to help.