IP rights in art in Germany

Intellectual property rights

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

According to section 7 of the Copyright Act (CA), all copyright vests automatically in the creator. The ‘work made for hire’ principle is not applicable in Germany, therefore legal entities will under no circumstances be regarded as creators. They can, however, be owners of related rights (most prominently for the release of posthumous works or the production of moving pictures), and might be granted exclusive or non-exclusive rights of use by the creator (section 31, CA).

Germany knows no registration formalities. However section 10(1) of the CA provides for a presumption of authorship based on designation. In the absence of proof to the contrary, a person is regarded as the creator of an artwork if he or she is identified as its creator on the original of the artwork.

What is the duration of copyright protection?

In general, copyright expires 70 years after the creator’s death (section 64, CA). However there are some specific regulations that deviate from this rule. For example, where several persons have jointly created a work without the possibility of separately exploiting their contribution (section 8, CA), copyright expires 70 years after the death of the last surviving joint author (section 65(1), CA).

German copyright law provides specific regulations for anonymous works in section 66 of the CA, which states that copyright expires 70 years after publication of the anonymous work. If it was not published during that period then the copyright expires 70 years after its creation.

Where German copyright law provides for related rights, particular provisions apply. In general, related rights are protected for 50 years from the creation of the underlying work. However, if the work is published during that term, the term of protection will restart and an additional protection term of 50 years is added, calculated from the first publication date.

According to section 69 of the CA, the term of protection is not calculated from the actual date of death or publication but commences at the end of the calendar year in which the event giving rise to it occurs. Therefore, if the author died on 1 January 1949, the copyright does not expire on 1 January 2019 but on 31 December 2019 at 12 am.

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

The owner of the original of an artwork is authorised to exhibit it physically in public even if it has not yet been published (section 44(2), CA). The qualification of an artwork as an original depends on the criteria applied by professionals in the art trade. This plays a decisive role, particularly for serial productions of graphics and castings. With regard to these types of work it is presupposed that the author himself or herself must have contributed to their production, for example by giving instructions. Indications of the status of an original artwork may be numbering, or a signature or foundry stamp on the graphic or casting.

The exhibition right may also be invoked by third parties (eg, museums) to whom the owner has provided the original work (eg, by way of loan). However, it is required that the first owner has legally obtained the work from the creator.

The author may explicitly rule out the exhibition right, but this must occur at the time of the sale of the original and the exclusion must be made expressly (ie, it cannot later be inferred from the circumstances).

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

According to section 58(1) of the CA, the reproduction, distribution and making available to the public of artistic and photographic works that are exhibited in public or intended for public exhibition or public sale by the organiser shall be permitted for advertising purposes to the extent necessary for the promotion of the event.

Making available to the public comprises, inter alia, digital offline media such as DVDs, CD-ROMs and online usage, such as the advertisement of exhibitions on the internet. Advertising material and invitation cards using exhibited artistic works in preparation for an exhibition are permissible, but this does not apply to postcards, calendars or other merchandising, as such materials would constitute an independent gain of profit as opposed to direct promotion of the event.

If an artistic work is used on the basis of section 58 of the CA, the source of the work must always be cited, in particular the artist’s name.

Are public artworks protected by copyright?

Public artworks, including street art, are protected by copyright. Copyright protection arises irrespective of whether rights of third parties are violated. Consequently house owners generally have to observe copyright law despite the unwanted imposition of a change to their buildings. A moral right issue may arise when it comes to refurbishment of the building in question. Whereas the complete destruction of the building would be permissible, visible changes that affect the work of art may not be permissible. The same applies to changes of location in the case of site-related art, which can also be regarded as a violation of the author’s moral rights. Removing street art from a building and selling it separately is also inadmissible under the right of distribution (section 17, CA).

Does the artist’s resale right apply?

Section 26 of the CA provides for a resale right for originals of artistic or photographic works where the net sales price amounts to at least €400. Architectural works and works of applied art, as well as simple photographs, do not fall under this provision. The term ‘originals’ covers all works that have been produced by the artist or under his or her control, which therefore includes multiples (eg, casts, prints or copies to the extent that they have been made from the template of the work with the consent of the author).

The duration of the resale right coincides with the general copyright duration.

Beneficiaries are the author and co-author, their heirs and successors in right.

The resale royalty is limited to a maximum of €12,000 and amounts to:

• 4 per cent for the portion of the selling price up to €50,000;
• 3 per cent for the portion of the selling price from €50,000.01 to €200,000;
• 1 per cent for the portion of the selling price from €200,000.01 to €350,000;
• 0.5 per cent for the portion of the selling price from €350,000.01 to €500,000; and
• 0.25 per cent for the portion of the selling price exceeding €500,000.

The royalty becomes due from the seller if the work is resold and an art dealer or an auctioneer is involved as purchaser, seller or intermediary. If the seller is a private person, the art dealer or the auctioneer, involved as purchaser or intermediary, is jointly and severally liable in addition to the seller; in their internal relationship, however, the seller is solely liable for payment.

The beneficiary may only collect the payment claim directly, whereas the information rights in relation to the art dealer or auctioneer as to which of the author’s works have been resold with their involvement during the past three years or as to the name and address of the seller, and regarding the selling price, must be pursued by a collecting society, generally VG Bild-Kunst.

The resale right is subject to the general statute of limitations, which is three years from the end of the year when the author was first entitled to his or her claim and he or she gained or could have gained knowledge thereof without gross negligence.

What are the moral rights for visual artists? Can they be waived or assigned?

The moral rights of the author are the right of (first) publication (section 12, CA), the right of recognition of the authorship (section 13, CA) and the right to prohibit distortion of the work (section 14, CA). These moral rights may also be invoked by foreign artists, independent of whether their home country adheres to respective international conventions or is party to a bilateral agreement with Germany.

The following rights can be distinguished:

• The right of publication, which gives the author the right to determine whether and how his or her work will first be published, and to communicate or describe the content of his or her work to the public as long as neither the work nor the essential content or a description thereof has been published with his or her prior consent. The consent must cover the original form of the artwork, and the specific time and place of the work’s publication. Therefore, the first publication of an adaptation of the work would affect the author’s usual rights if he or she had given consent for it. The same applies if the work was published at a different time or place as determined by the author. An exception to this right is the exhibition right that is automatically granted to the purchaser of an original work of art (even if it is published) according to section 44(2) of the CA.
• The right of recognition as the author of the work in relation to any use made of the work. The artist may determine whether and which designation of authorship the work shall bear. Authors, co-authors and publishers are entitled to the recognition right. While this right may not be entirely waived, the author may, depending on the case, agree to refrain from pursuing his or her right for a limited period of time (eg, in the case of a ghostwriter). However, permanent waiver of the recognition right has been rejected by German courts. Rather, there is a right to terminate such agreement after five years. The right of recognition allows the author to remain anonymous or to later dissociate himself or herself from the work.
• The right to prohibit the distortion or any other derogatory treatment of the work, which might prejudice the author’s legitimate intellectual or personal interests in the work. This moral right also applies to any alterations during usage of the work that are capable of affecting the author’s legitimate interests.

Moral rights expire 70 years after the author’s death (see question 25).