The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for copyright law, has ruled that the ancillary copyright under Section 72 (1) UrhG in individual film images includes the right to exploit the individual images in the form of the film.
On 17 August 1962, the cameraman Herbert Ernst had filmed from the West Berlin side of the Berlin Wall 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 attempt to escape from the then GDR.
The plaintiffs claim that Herbert Ernst had granted them the copyright to use this film recording; the defendant broadcaster had broadcast this recording without their consent, inter alia, on 13 August 2010 in the Berlin Abendschau. They therefore warned the defendant in a letter of 31 August 2010 and then brought an action for injunctive relief and compensation.
The district court dismissed the action. The plaintiffs' appeal was unsuccessful. The court of appeal held that the claims asserted by the plaintiffs were in any case forfeited after Herbert Ernst had not asserted any claims for more than 48 years, although film footage of Peter Fechter's death had been broadcast repeatedly.
On appeal by the plaintiffs, the Federal Court of Justice partially set aside the appeal judgement and referred the case back to the Court of Appeal for a new hearing and decision. According to the Federal Supreme Court, the claim for injunctive relief asserted by the plaintiffs due to the broadcast of the film on 13 August 2010 cannot be dismissed due to forfeiture. This is opposed by the fact that a forfeiture of claims due to infringements committed is not connected with a carte blanche for future infringements. According to the Federal Supreme Court, the defendant can in principle successfully invoke forfeiture with regard to the claim for a declaration of the obligation to pay compensation for unauthorised use of the film recordings, because it was entitled to rely on the fact that it would not subsequently be held liable for compensation for unauthorised use of the recordings for decades. However, since forfeiture may not lead to a shortening of the (short) limitation period of three years, only claims that arose until 31 December 2007 are forfeited, the limitation of which could no longer be suspended by filing an action in 2011.
According to the Federal Court of Justice, the plaintiffs' claims for injunctive relief and for compensation for use since 1 January 2008 do not fail because the film recording is not protected as a cinematographic work and the film frames are not protected as photographic works because they are merely documentary recordings and not personal intellectual creations. This is because there is in any case a neighbouring right to the individual film images under Section 72 (1) UrhG and - as the Federal Court of Justice has now decided - this includes the right to exploit the individual images in the form of the film. The Court of Appeal will now have to examine whether the plaintiffs - as they claim - are the owners of the rights of use under copyright law in the film broadcast by the defendant.
Judgment of the BGH of 22 January 2014 - I ZR 86/12 - Peter Fechter
Lower courts:
LG Berlin - Judgment of 20 May 2011 - 15 O 573/10
KG Berlin - Judgment of 28 March 2012 - 24 U 81/11, ZUM-RD 2012, 321
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
