Can I rewrite lyrics into copyrighted songs?
Practical Legal Tips for Authors - Part 2
In this overview you will learn what is important when adopting and reformulating texts. The article also sheds light on the legal consequences of copyright infringement.
In this overview you will find out what is important when adopting and reformulating texts. The article also sheds light on the legal consequences of copyright infringement.
Adoption and reformulation of texts - what should be considered?
It is important here that only taking over copyrighted content can trigger legal conflicts. The adoption of mere ideas, teachings, theories, concepts, or scientific approaches is permitted. Even a certain writing style cannot be protected by itself. The same applies to texts whose copyright protection period has expired. They can be used by anyone in new texts.
But if you want one Literally take copyrighted text, this is generally only allowed with the consent of the author. That is an exception Right to quote (§ 51 UrhG).
However, this is often misunderstood in practice. So it is not enough to just add an Source to provide. Here the author must be asked for permission. Rather, the right to quote only applies if the author of the second text deals mentally with the quoted text. For example, in order to make the interpretation of a poem understandable, the poem itself may be printed if you also have your own thoughts on understanding the poem. On the other hand, it would not be enough to reproduce a thematically appropriate poem at a suitable place in your own text and only list the poet as the source.
By the way, the copyright law also protects Titles or headings of textswhich, due to their brevity, actually do not reach any height of creation, e.g. B. Book title. Title protection quickly arises here, even with relatively common formulations. A registration application as in trademark law or other formal acts are not necessary. Title protection arises automatically when the text appears (e.g. book, magazine, e-book).
At the Reformulating copyrighted texts What matters is that the reformulation creates its own protected work, which is so far removed from the original text that the spiritual creation of the original text fades. In this case it is a free usefor which no consent has to be obtained (Section 24 (1) UrhG). The situation is different if your own text is not far enough away from the original. In this case one speaks of one Machiningwhich is only allowed with the consent of the original author (§ 23 UrhG).
In the Differentiation between free use and processing strict rules apply. In the legal review of a processing What matters is the similarities, not the differences, of the texts to be compared. It is not enough that the new text also contains additional, different text passages. In particular, it is not sufficient to merely change the sentence position of an existing text or to exchange individual formulations if the structure, narrative structure and plot are retained (cf. LG Hamburg, judgment of October 22, 2010, Az. 308 O 78/10).
Authors are therefore well advised to conduct research for commissioned texts so intensively that they are then able to find the desired To reproduce statements in your own words. So is Not meant that central catchwords should be replaced by own creations.
Example: When creating a text on the subject of “pension insurance”, you do not need to create an alternative word with the same meaning. On the other hand, a separate structure and presentation of the content must be developed. Anyone who uses protected texts here runs the risk of violating third-party copyrights.
Already knew? Did you know that a text enjoys copyright protection even if someone else's copyrights were infringed during the creation? If you copy protected text and process it in your own article, you become the author of the new text - the risk of legal disputes with the author of the older text is a different matter.
What are the legal consequences of copyright infringement?
If there is a copyright infringement, the author of the infringer may Elimination, omission, information and often too damages desire.
The claims for omission, elimination and information about the scope of the infringement do not presuppose fault. So it doesn't matter whether the infringer intentionally or accidentally disregarded the third-party copyright.damages on the other hand, the author is only entitled if the perpetrator is at fault, whereby it should be noted that the jurisprudence applies strict standards of fault.
According to § 97a Abs. 1 UrhG, the author should first give the infringer an extrajudicial Warning in the context of which a request is made to cease and desist and to submit a declaration of cease and desist subject to penalties - usually also for information, compensation and, if necessary, reimbursement of legal fees. The cease and desist declaration aims to resolve the legal dispute quickly and cheaply without judicial involvement.
It is particularly important that a declaration of cease and desist is only considered legally binding if it contains the obligation to pay a severe contractual penalty in the event of a future breach (= "punitive reinforcement"). If the submission of a sufficient declaration of cease and desist with criminal penalties is refused, the claims for cessation and removal can be enforced by means of an injunction or legal action. Compensation for damages, on the other hand, cannot be obtained in an urgent procedure, but only in a main action.
Excursus: Text protection via trademark law and competition law
It is possible to have texts that are not too long, such as a slogan, registered as a trademark in the register of the German Patent and Trademark Office (DPMA). B. as a word mark. If the DPMA accepts the application, a monopoly right arises in favor of the trademark owner. However, this does not mean that the text protected as a trademark may no longer be used by third parties at all. Only that is forbidden trademarked usewhich is the case when the text is used as an indication of the origin of a company's goods or services.
The following would be inadmissible: To write a product description for a smartphone shop if the term “iPhone” appears in the title of a Samsung product in a way that suggests that the Apple product can be bought there. Conversely, in a press release about sales figures for smartphones, the word mark protected terms “Samsung” and “Apple” may be used in an editorial manner - in this case there is no trademark use.
For the sake of completeness, it should not go unmentioned that the competition law protection of a text is legally conceivable if it has competition law peculiarities (§ 4 No. 9 UWG). One speaks here of supplementary performance protection under competition law. This becomes particularly relevant when foreign text is adopted on a large scale, due to a lack of creative height not protected by copyright is e.g. B. from a third-party website (LG Cologne, judgment of 20.06.07, Az. 28 0 798/04). In practice, however, such cases are rare.
Do you want one Literally adopt copyrighted text, this is only allowed with the consent of the author (exception: right to quote).
At the Rephrase it depends on whether a proprietary work is created that has strayed so far from the original text that the spiritual creation of the original text fades. If your own text is not far enough away from the original (e.g. due to too many matches), one speaks of one Machiningwhich is only allowed with the consent of the original creator. It comes to one Copyright infringement, the author may demand removal, omission, information and often also compensation.
Authors are well advised to conduct research for commissioned texts so intensively that they are then able to reproduce the desired statements in their own words.
About the author:
Lawyer Niklas Plutte is a specialist lawyer for commercial legal protection based in Mainz. His law firm supports companies in the online industry, agencies and creative people in the areas of copyright, trademark law, competition law and IT law. In the blog, the law firm regularly reports on current developments around the Internet and law.
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