The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for copyright law, has ruled that the related right under Section 72 (1) of the German Copyright Act (UrhG) in individual film frames includes the right to exploit the individual frames in the form of the film.
On august 17, 1962, cameraman Herbert Ernst filmed the death and removal of Peter Fechter, who had been shot by soldiers of the National People's Army on the East Berlin side of the Berlin Wall near the so-called Checkpoint Charly during his escape attempt from the former GDR, from the West Berlin side of the Berlin Wall.
The plaintiffs assert that Herbert Ernst granted them the copyright exploitation rights to this film recording; the defendant broadcasting corporation broadcast this recording without their consent, among other instances, on august 13, 2010, in the 'Berliner Abendschau'. They therefore issued a warning letter to the defendant on august 31, 2010, and subsequently filed a lawsuit for injunctive relief and compensation for value.
The Regional Court dismissed the action. The plaintiffs' appeal was unsuccessful. The appellate court held that the claims asserted by the plaintiffs were in any event forfeited, as Herbert Ernst had not asserted any claims for over 48 years, despite film recordings of Peter Fechter's death having been repeatedly broadcast.
Upon the plaintiffs' appeal on points of law, the Federal Court of Justice partially overturned the appellate judgment and referred the matter back to the appellate court for a new hearing and decision in that regard. The claim for injunctive relief asserted by the plaintiffs regarding the broadcast of the film on august 13, 2010, cannot – according to the Federal Court of Justice – be dismissed due to forfeiture. This is countered by the fact that the forfeiture of claims for past infringements does not grant a carte blanche for future infringements. However, with regard to the claim for a declaration of liability for compensation for value for unauthorized uses of the film recordings, the defendant – the BGH further stated – can in principle successfully invoke forfeiture; because, in view of the decades of unchallenged use of the recordings, it was entitled to trust that it would not be subsequently held liable for compensation for value. However, since forfeiture must not lead to a shortening of the (short) limitation period of three years, only claims arising up to December 31, 2007, are forfeited, the limitation period of which could no longer be suspended by the filing of the lawsuit in 2011.
According to the Federal Court of Justice, the plaintiffs' claims for injunctive relief and compensation for value for uses since January 1, 2008, also do not fail on the grounds that the film recording is not protected as a cinematographic work and the individual film frames are not protected as photographic works, because they are merely documentary recordings and not personal intellectual creations. This is because, in any event, a related right exists in the individual film frames under Section 72 (1) of the German Copyright Act (UrhG), and this right – as the Federal Court of Justice has now ruled – includes the right to exploit the individual frames in the form of the film. The appellate court will now have to examine whether the plaintiffs – as they assert – are the holders of the copyright exploitation rights to the film broadcast by the defendant.
Judgment of the BGH of January 22, 2014 – I ZR 86/12 – Peter Fechter
Lower Courts:
Regional Court of Berlin – Judgment of May 20, 2011 – 15 O 573/10
Berlin Court of Appeal – Judgment of March 28, 2012 – 24 U 81/11, ZUM-RD 2012, 321
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
