What does an abandoned copyright mean
Your lawyer for copyright law
Common questions in copyright law
Copyright plays a crucial role in the field of creative creation. But who is actually the author and what rights and claims do they have? We answer the most important questions here.
What is the copyright?
Copyright protects intellectual property and regulates the exclusive right of the creator to his work.
The focus is on the question of whether a work can even be accepted under copyright law. For this there must be a personal, spiritual creation. These criteria are usually met for photographs, designs, sophisticated literary texts, music, films, painting, but also for applied arts such as graphic design.
Who can be the author and what rights does he have?
According to German copyright law, only natural persons can be authors. Every human being is a natural person.
The author can
- use and exploit his work
- give others permission to use or exploit them.
If his work is used by others, he also has the right to be named.
When does copyright protection arise?
In principle, copyright protection arises with creation, i.e. the creation of the work.
Copyright for photos and images
Photos, photographs, recordings, photographs and photographic works as well as plans, (technical) drawings, sketches, works of art, images are inextricably linked with the artist or hobby artist who created them. All these spiritual creations have rights that must be defended or pursued in the event of a dispute. We often encounter these tasks in connection with company appearances, web portals, web shops, online shops, platforms such as eBay, but also in catalogs, advertising material, flyers, etc.
A copyright on an image arises when there is a personal intellectual creation.
This presupposes that the picture was created personally - i.e. by a natural person. The photo, which is automatically taken in a photo box at the train station, is therefore not copyrightable.
In addition, there must be a creation. A certain “height of creation” is required for creation. Creation height is given when the picture has a certain creative peculiarity. In terms of this individuality, it must at least protrude somewhat from the norm. This criterion of a certain creative peculiarity was again significantly reduced by the "extension of copyright" to so-called ancillary copyrights. According to these standards, a very small amount of individual design is often sufficient for “copyright protection”.
Copyright in texts
Publications in the classic print sector such as specialist literature, magazines, non-fiction books or catalogs, texts, articles, books, other specialist articles, but also reports in the context of websites, exchanges in forums or other online publications can enjoy copyright protection.
What was said earlier about the photograph also applies to the creation of copyright on texts: the text protected by copyright must also represent a personal intellectual creation.
In contrast to the photograph, however, the text does not have the simplifying requirements of a so-called ancillary copyright. The text must therefore have a certain individuality that sets it apart from the norm. Copyright is therefore more likely to be seen in a journalistic newspaper article than in a mere blog entry by a private person. As is so often the case in copyright law, the boundary is fluid.
Copyright in music and films
The download and upload of copyrighted works such as songs, pieces of music, sound recordings, songs or films - file sharing or as unauthorized use, use or exploitation of third-party music and film (works), for example in the context of self-created videos (school projects, platforms such as Youtube) or pieces of music are a common topic in our practice. "
Songs are works protected by copyright. The subject of songs and copyright is particularly well-known through the so-called mass warnings issued by various law firms when it comes to file sharing. Music groups such as Sony, BMG or Universal assert claims for injunctive relief and damages against people who have downloaded or made available pieces of music or films on Internet exchange sites.
A whole warning industry has developed here. We have always successfully defended our clients against such warnings. Most recently, we were even able to convict a music company by means of a negative declaratory action to “withdraw the warning”.
Special features for graphic artists and web designers
The area of graphic and web design - in other words, applied arts - has experienced a small revolution through the decision of the BGH's birthday train. In this decision, the BGH significantly lowered the threshold for copyright protection in the area of graphic and web design, so that "simple" graphic designs also enjoy copyright protection and are appropriately remunerated.
Duration of copyright protection
Copyright continues until 70 years after the author's death.
Copyright warnings - How do you react?
Have you been warned?
Be sure to consult a knowledgeable copyright attorney. Our clients often receive copyright warnings that are not justified. Our lawyers then check whether there is a legitimate case of a copyright warning and, depending on the result, decide together with you on subsequent strategies and procedures.
It is possible to fend off the claims of the opposing party as a whole or to reach a settlement with the opposing lawyer, which can avoid an expensive copyright dispute in court.
Important steps here:
- Check: Copyright infringed? (right away!)
- Submission of a modified cease and desist declaration
- Counter warning
- negative declaratory action
It is important that you contact a copyright lawyer quickly so that they can react immediately and save you expensive warning fees or lawsuits.
Has your copyright been infringed? - Claims in the event of copyright infringement
Depending on the outcome of the exam, you have the following options:
- copyright warning
- copyright authorization request
- Interim injunction in copyright law
- Lawsuit in copyright law
- Lawsuit for injunctive relief in copyright law
- Lawsuit for damages in copyright law
- Legal action for information in copyright law
- Lawsuit for reasonable compensation in copyright law
The individual copyright instruments and defense claims
The infringer will be asked by your lawyer to immediately stop the illegal behavior. He is also requested to submit a declaration of discontinuance within a short period. If the opponent submits, the warning procedure can lead to the desired omission of further impairment and also to compensation for the damage incurred out of court. If the infringer refuses to admit his illegal act, the next step is a judicial enforcement of the claims through your copyright lawyer.
Interim injunction in copyright law
An injunction is usually preceded by a warning from your lawyer, which is directed against the infringer. If the infringer does not submit, your copyrights can be protected in an urgent procedure - the interim injunction procedure. This urgent procedure is often only aimed at "omitting" the infringement and is operated by your copyright lawyer.
One hurdle in this urgent procedure is again and again the so-called "urgency period". As a rule, you will only receive an injunction on copyright within a period of 1 month after becoming aware of the infringement. Within this period, the warning procedure must be completed with a deadline for omission so that you do not incur the costs of your lawyer.
When calculating the urgency period, there may be deviations from the rigid 1 month period in individual cases. In the event of a copyright infringement that has taken place on the Internet, for example, you can take your copyright lawyer to court practically anywhere in Germany. Some courts have longer periods of urgency (e.g. Frankfurt 6 weeks; Düsseldorf 2 months).
Please always assume, however, that an injunction can normally only be obtained within a period of 1 month after you have become aware of the violation. So it is urgent.
If your lawyer can obtain an injunction for you, the court will order the infringer to refrain from violating your rights in the event of a payment of up to € 250,000.00 or to custody. As a rule, costs for warnings and damages are enforced in subsequent legal proceedings.
Lawsuit in copyright law
If the infringer does not submit after a warning and the urgency period has been exceeded, or if your lawyer has obtained an injunction for you, the existence of which the infringer does not acknowledge, your claims for omission, information and damages must be enforced in legal proceedings.
Since such legal proceedings are usually lengthy, it is worthwhile to react immediately after becoming aware of the copyright infringement and to instruct your lawyer for copyright to enforce your claims by means of a warning and then in interim injunction proceedings.
Claims for damages based on copyright
If you breach your copyrights, you will also be entitled to a claim for damages against the infringer. In the case of a justified warning, this initially consists of the costs for your lawyer. In addition, compensation can be requested for the damage you suffered as a result of the illegal use of your works by the infringer.
Since the calculation of such specific damage often causes problems, there are 3 variants that have emerged in literature and case law.
On the one hand, you can choose the specific damage that has occurred, provided that it is possible to calculate it. On the other hand, the infringer's profit can be chosen. However, the calculation must also be possible here.
The third most common variant is the so-called license analogy method. Here the question is asked what the two parties would have reasonably agreed in order to remunerate use in the form that has taken place.
Calculating the damage is one of the most difficult tasks in copyright law. You can rely on our many years of experience as experts in this area.
Shaping copyright - license agreements
Copyright is an intellectual property right. If you want to "sell" your work, you have to do so in the form of licenses. As lawyers, we can work out license agreements for you that individually map the respective use of your works by your customers or contractual partners.
With this you secure your rights on the one hand, and on the other hand the customer / contractual partner is obliged in such copyright license agreements to pay you license fees according to the use made.
Right to reasonable compensation in copyright law
If you have created something for a customer that enjoys copyright protection and have not been sufficiently remunerated for it, you are entitled to appropriate remuneration from this customer / business partner.
The question of what constitutes an “appropriate remuneration” is closely related to the calculation of the damage in the event of unauthorized use / exploitation of your works. As a rule, the appropriate remuneration is based on what would have been "customary" as remuneration. For many industries there are “customary” remuneration rules that apply here, which can be the basis of the calculation in these cases.
Do you need legal advice on copyright law?
As specialist lawyers for copyright and media law, we have many years of experience in the field of copyright law and can therefore advise and represent you as a copyright law firm in the districts of Frankfurt, Darmstadt, Mannheim and nationwide.
Our services include the following areas:
- Copyright lawsuits
- Injunctions Copyright
- Claims for damages copyright
- Lawsuits for appropriate remuneration of the author (BGH birthday train)
- Injunction copyright
- License agreements copyright
How does the consultation work?
First, we will discuss your case and see if it has any chance of success. Depending on the result of this check, we will coordinate the following steps with you. It is our philosophy to work out a "sensible approach" for you. Engaging in a process that has no prospect of success makes no sense as it only costs them money and worries them. In addition, you will then rightly accuse us of not having provided you with sufficient information. That is why we will tell you openly if we see no prospect of success. This saves you the loss of money, valuable time and a bad rating afterwards.
Get in touch with us and explain the copyright infringement of your rights to our specialists. As specialist lawyers for copyright law, we will first examine your case and determine whether there is any copyright protection at all. If this is not the case, there may still be claims from trademark or competition law.
If there is a violation of your copyright, we will assess the extent of the violation in the next step and show you the procedure for enforcing your rights in a targeted manner.
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