Term and Definition of Cinematic Works
Cinematic works represent a distinct category under copyright law and encompass moving image sequences rendered in film, with or without sound. According to Section 2(1)(6) of the Copyright Act (UrhG), a cinematic work is a copyright-protected work characterized by the personal intellectual creation achieved through the combination of moving images. This includes feature films, documentaries, commercials, educational films, as well as experimental and artistic film productions.
Distinction from Other Types of Works
Not every moving image qualifies as a cinematic work. For copyright protection, a unique form of expression and individual character, known as the threshold of creativity, must be present. Moving images such as surveillance recordings generally do not meet this requirement and are therefore separately protected as moving images under Section 95 UrhG.
Statutory Foundations
Copyright Act (UrhG)
The creator of a cinematic work is deemed the author according to Section 15 UrhG. In addition to the general copyright provisions, the UrhG contains specific regulations for cinematic works (Sections 88-94 UrhG).
Threshold of Creativity
The protectability of a film work largely depends on its individual design. The selection and arrangement of shots, dramaturgy, artistic realization, and audiovisual presentation determine the required threshold of creativity. Technical recording processes alone do not justify protection as a cinematic work.
Joint Authorship in Cinematic Works
The creation of cinematic works usually involves multiple individuals creatively contributing, such as the director, cinematographer, and screenplay writer. According to Section 8 UrhG, a joint copyright arises when the individual contributions merge into an inseparable unified work of art. Under Section 89(2) UrhG, authors of music, screenplays, and dialogues are specifically deemed to be authors of the film work.
Special Features of Cinematic Works
Rightsholder and Exploitation Rights
The author has the exclusive right to make the film work publicly accessible, distribute, broadcast, and reproduce it. In practice, these exploitation rights are contractually assigned to production companies or distributors.
Film Producer’s Rights
Regardless of copyright, Sections 94 et seq. UrhG grant special rights to the film producer, who bears the economic risk. The producer’s right protects the financial and organizational effort and expires 50 years after the first publication.
Term of Protection for Cinematic Works
The protection period for cinematic works lasts for 70 years after the death of the last surviving author (Section 65 UrhG). The key reference persons are primarily the principal director, screenwriter, and composer of the film music, provided the music was created specifically for the film work. The producer’s right expires 50 years after publication.
Transfer of Rights and Contracts
Contracts for the use of film works are generally license agreements, through which exploitation rights can be transferred in whole or in part to third parties. Production agreements, rental and distribution contracts, as well as co-production agreements, are of particular importance.
Chain of Title
Before any commercial use, a so-called rights clearance (chain of title) is conducted, documenting the uninterrupted rights chain from creation to exploitation of the work.
Cinematic Works in an International Context
In the international context, the regulation of cinematic works is also addressed in international agreements, particularly the Revised Berne Convention (RBÜ) and the TRIPS Agreement. The protection provisions are similar to German law, but may vary regarding the term of protection and the identification of rightsholders.
European Harmonization
With Directive 2001/29/EC (InfoSoc Directive), the European Union has partially harmonized copyright limitations and terms of protection. Its implementation into German law leads to a largely uniform level of protection for cinematic works at the European level.
Special Case: Protection of Moving Images
Not every film document is classified as a cinematic work. Moving images lacking the necessary threshold of creativity (e.g. surveillance videos, simple recordings of events without creative design) are protected under Sections 95, 72 UrhG as photographic/moving images, which afford shorter protection periods and less comprehensive rights compared to actual copyright.
Limitations and Rights of Use
The use of cinematic works is subject to certain limitations. This concerns, for example, private copying, the right of citation, or educational uses. The precise requirements are set out in Sections 44a–63a UrhG.
Personal Rights in Cinematic Works
In the exploitation of cinematic works, the personal rights of third parties must also be observed, particularly the right to one’s own image (Section 22 Art Copyright Act) and data protection provisions (GDPR). Recordings of individuals may generally only be published with their consent.
Summary
Cinematic works are complex audiovisual creations subject to specific copyright regulations. Their protection covers not only the artistic content but also the economic interests of producers. Numerous contributors may be rights holders, resulting in a highly complex legal structure. The exploitation, use, and contractual design of film works are therefore regularly characterized by legal particularities that must be observed during creative and commercial uses.
Frequently Asked Questions
Who is the legal author of a cinematic work?
The legal author of a film work under German copyright law is generally the person who creatively created the film. According to Section 65 UrhG, there is so-called joint authorship by several participants, since a film work often consists of numerous creative contributions by different individuals. Those directly recognized as joint authors are in particular the film director, screenwriter, dialogue writer, as well as the composer of music created specifically for the film. Other creative contributions, such as camera or editing, may also be creative, but are not explicitly named by the legislator, so in case of dispute, the courts decide on authorship. Simple technical or organizational activities—such as by producers or financiers—do not constitute authorship. Rights to individual components included in the film, such as musical works or stage designs, may exist independently.
How long does copyright protection for cinematic works last?
The term of protection for film works is regulated in Section 65 UrhG. Accordingly, copyright to a film expires seventy years after the death of the last surviving joint author named in Section 65(2) UrhG (director, screenwriter, dialogue writer, composer). The key factor is which of these authors died last—this triggers the start of the seventy-year protection period. During this period, exploitation rights (such as screenings, reproduction, distribution, etc.) may only be exercised with the consent of the rights holders. Only after expiration of this period does the film enter the public domain and can be used by anyone, provided no other protective rights (e.g., related rights) apply.
What rights of use can be granted for cinematic works?
Rights of use in cinematic works can be comprehensive and differentiated (Sections 31 et seq. UrhG). These include, in particular, the right of reproduction, distribution, public presentation, broadcasting, online exploitation (e.g., streaming), adaptation, as well as the right to manufacture merchandising products. The rights can be limited or unlimited as to territory, time, and content, and can be assigned or licensed. In principle, unless there is an employment or commissioned relationship and unless other specific statutory regulations apply, the express consent of all joint authors is required. For commissioned productions, and particularly in film production, comprehensive rights transfers to the production company are commonly made, sometimes supported by the so-called film author’s contract. The exact chain of title should always be contractually recorded, as this also forms the basis for claims to remuneration and subsequent payments.
What must be considered when using third-party works in a film?
When using third-party works—such as music, photos, artworks, third-party film sequences, or literature—in a film, all rights must be properly cleared. Obtaining the necessary rights of use is required for every form of integration (e.g., as soundtrack, quotation, prop) unless an exception such as the right of quotation (Section 51 UrhG) applies. All relevant rights holders must be identified and their permissions obtained. For music, GEMA often needs to be involved; for film clips or works of art, other collecting societies may also be relevant. Failure to clarify rights can lead to claims for injunctive relief, damages, and even criminal liability. It is advisable to document all usages and rights acquisitions in writing.
What special features apply to film production under an employment or commissioned relationship?
If a film work is created within the scope of employment or a service relationship—such as by employed editors, screenwriters, or film composers—the rights to the work results may pass to the employer, provided this is agreed contractually or arises from the employment relationship, pursuant to Section 43 UrhG. In film law, there is also the special feature of the so-called film producer’s right (Section 88 UrhG); this grants the film producer—usually the production company—certain protection rights independent of copyright, to ensure the commercial exploitation of the film. In case of doubt, and especially regarding freelancers, the transfer of rights must be clearly regulated in order to avoid later disputes.
How does copyright in a film work relate to related rights?
In addition to the original copyright in the film work, there are several related rights specific to the film sector (Sections 73 et seq. UrhG), granted, for instance, to performing artists (actors), film producers, and phonogram producers. These rights exist independently of copyright and grant their holders separate rights, such as the right to be credited, protection against unauthorized reproduction and exploitation, or participation in distributions by collecting societies. When using films, the related rights (e.g., those of actors and film producers) must also always be obtained. The term of protection for related rights is governed by the respective provisions and may differ slightly from that of copyright.
What liability risks exist if a film work is publicly performed or distributed without the rights holders’ consent?
Unauthorized public performance, distribution, or other use of a film work without the required rights constitutes copyright infringement. This can have civil law consequences: injunctions, claims for removal, claims for damages (potentially calculated as a lump sum pursuant to Section 97a UrhG), as well as claims for surrender of unjust enrichment are possible consequences. In addition to claims by the copyright holders, related rights holders may bring their own claims. Moreover, unauthorized use may also have criminal law consequences (Section 106 UrhG), for which a complaint by the rights holder is required (so-called ‘offense upon application’). Rights violators also risk being subject to ‘damages based on license analogy’ in the amount of the usual remuneration. Therefore, comprehensive rights clearance is essential before any public use of a film.
