Concept and Legal Classification of ‘Free Use’
Die Free Use plays a central role in German copyright law as an exception to the principle of the author’s exclusive rights to their work. It refers to the creation of an independent work using or referencing an already existing protected work, without the need for the rights holder’s consent. The legal development, requirements, and consequences of free use are complex and continually evolving through legislation and high court rulings.
Statutory Basis of Free Use
Historical Development
Until the implementation of the EU Directive 2001/29/EC and the corresponding amendment of the Copyright Act (UrhG) in 2021, Section 24 (1) UrhG formed the statutory core of free use. According to this provision, an independent work created using another person’s work was permitted, provided the new work had arisen “in free use.”
Following the legislative amendment, the previous Section 24 (1) UrhG was repealed. Since then, the requirements and limits of free use have been governed primarily by Section 23 UrhG and the so-called limitation provisions in Sections 44a et seq. UrhG, in particular the right of quotation (Section 51 UrhG), parody (Section 51a UrhG), and caricature or pastiche.
Legal Situation After the Copyright Reform
Section 23 UrhG – Adaptations and Transformations
Adaptations and other transformations of a work may generally only be published or exploited with the author’s consent. This includes, in particular, translation, filming, musical adaptation, or other creative changes to an original. The law makes an exception for expressly permitted limitation provisions.
Concept of Pastiche (Section 51a UrhG)
The new provision of Section 51a UrhG permits the use of a work for the purposes of caricature, parody, or pastiche. For example, an independent, artistically transformed work may be allowed if it has a critical-commentary, humorous, or artistically independent character.
Distinction of Free Use From Other Legal Concepts
Free Use vs. Adaptation
A key distinction is between an inadmissible adaptation and an admissible free use or transformation. While an adaptation generally requires consent, in the case of free use, the creative contribution is so far removed from the original work that the original author’s protective interests are no longer affected.
Free Use vs. Plagiarism
Plagiarism is always unlawful and infringes the rights of the original author. Free use requires such a strong degree of independence and transformation that the newly created work is autonomous and possesses its own character, detached from the original.
Requirements of Free Use Under Current Law
Transformation and Independence
The new work must significantly modify the original work so that an independent imprint is present and the used work ‘recedes into the background.’ According to case law, originality and creative penetration are decisive. Merely adopting style elements or general ideas is not sufficient.
Purpose Limitation and Exceptions
Since the legal reform, free use has been restricted to specific purposes such as parody, caricature, and pastiche. In borderline cases, it is primarily courts that decide whether a sufficiently independent character exists and whether the interests of the original author have been respected.
No Risk of Confusion
Free use requires that the new work cannot be confused with the original. What matters is that the distinctiveness of the new work is unmistakably apparent to the targeted audience.
Case Law on Free Use
Landmark Decisions of the Federal Court of Justice
A key high court decision is the “Metal on Metal” ruling of the Federal Court of Justice (BGH GRUR 2016, 191). The Court clarified that, according to an interpretation in line with European law, free use represents a very narrowly defined exception. The reproduction or sampling of technical recordings, where essential elements of the original are adopted, generally no longer constitutes free use.
Decision of the European Court of Justice
The European Court of Justice (ECJ) further tightened the requirements by clarifying that exceptions must be interpreted narrowly and the rights holder’s interests must be upheld. According to current law, free use is mainly limited to artistic reinterpretations and transformative achievements.
Significance of Free Use in the International Context
There are different regulations regarding the use of third-party works in international copyright law. Germany follows the territoriality principle and EU harmonization. Comparable rules can be found in the Anglo-American principle of ‘fair use’, which, however, has different requirements and scope.
Practical Relevance and Areas of Application
Art, Satire, and Music Creation
Free use is especially important for artistic creation, music and text adaptation, visual art, parodies, and the art form of collage. It allows for creative dialogues with existing works, while imposing strict legal and creative limits.
Academic Use
In academic practice, free use is restricted by the right of quotation (Section 51 UrhG) and is generally applicable on a more artistic-creative level rather than in scholarly contexts.
Conclusion: Significance and Legal Challenges of Free Use
Free use remains a central, but in its applicability narrowly limited, legal concept in copyright law. It creates space for creative development and cultural dialogue, but is subject to strict legal requirements and limitations that are constantly evolving. Precise legal classification therefore regularly requires careful examination of the type of work, degree of creativity, and a balancing of interests in each individual case.
Frequently Asked Questions
When does free use exist in the legal sense?
From a legal perspective, free use exists when a new work, within the framework of copyright law and through sufficiently extensive creative input, differs from a pre-existing work such that its individuality is no longer recognizable in the new work. The law does not define fixed boundaries but requires an overall assessment of the adopted and newly created elements. Free use (Section 24a UrhG, after the 2024 reform) is legally relevant because it determines whether use without the author’s consent is permitted. The decisive factor is to what extent the adopted elements in the new work still demonstrate independent characteristics and whether the original work’s creative contributions play only a subordinate role compared to the user’s own creative input. It is also crucial that an original creation has arisen, not merely an adaptation or transformation.
What role does creative input play in assessing free use?
Creative input forms the core of legal assessment. The main question is the extent to which the new work exhibits individual traits and its own creative character such that the original work fades in its individuality. The more original and creative the new work is, the more likely it is to qualify as free use. Courts consider, among other things, motives, structure, composition, and form of expression of the new work and compare them to the original. If the creative input is regarded as sufficiently strong, a legal free use exists; otherwise, it is to be regarded as a copyright-relevant adaptation that requires authorization.
Which works and types of works can benefit from free use?
Within the legal framework, free use generally applies to all copyright-protected works (Section 2 UrhG), including literary works, musical works, works of visual art, film works, and computer programs. However, there are special rules, such as for the free use of musical works, which are particularly relevant due to the high level of protection for musical forms of expression. According to recent case law and the copyright reform, the principles of free use also apply, for example, to the integration of third-party works in collages, mashups, or parodies—provided the creative input predominates and the original recedes into the background.
What is the significance of free use in relation to the right of quotation and other copyright exceptions?
The right of quotation (Section 51 UrhG) and other copyright exceptions (such as for parodies, caricatures, or pastiche) must be distinguished from free use. The right of quotation expressly permits the use of parts of a work for specific purposes and under strict conditions (e.g. academic work) and requires attributing the source, whereas free use relates to the creation of a new, independent work through the use of existing work elements. Both legal concepts allow use without a license but follow different legal requirements. Free use is further limited by statutory exceptions and often interacts with them.
How is the legal distinction made between adaptation and free use?
The distinction between adaptation (Section 23 UrhG) and free use (Section 24a UrhG) is a central legal issue. While an adaptation or transformation always requires the author’s consent, free use is permissible without consent if the creative input of the adaptor prevails. Legally, it is examined whether the new work has acquired an independent character so that the earlier work serves only as inspiration. If this is not the case and the individuality of the original remains clearly recognizable, it is legally classified as an adaptation requiring approval. The decisive factor is the degree of creative distance and autonomy.
What are the consequences of an incorrect classification as free use?
A mistaken assumption that a new work is free use can have significant legal consequences. If a work is, in reality, merely adapted or transformed without obtaining the required consent from the original author, copyright claims for injunctive relief, damages, and information may arise. Legal proceedings may also be initiated to prohibit the use and exploitation of the work. Therefore, classification always requires careful legal review based on the particular circumstances of each case and current jurisprudence.
What impact did the 2024 copyright reform have on the rules for free use?
With the 2024 amendment of copyright law, the scope of application for free use was newly regulated. The previously existing Section 24 UrhG was replaced by Section 24a UrhG, clarifying the requirements for creative input and legal distinction from adaptation. The new version particularly takes into account the developed case law of the Federal Court of Justice and the guidelines of the European Court of Justice, so that even stricter standards for the independence of the new work now apply and cases of permitted use without consent have been further specified. The reform aims to strengthen authors’ protection and provide legal certainty for subsequent creative endeavors.
Do authors and sources of the original work need to be acknowledged in a case of free use?
Legally, in the case of free use, there is generally no obligation to name the author or indicate the source, since the new work constitutes an independent copyright-protected subject matter in which the original work is no longer recognizable. The requirements for author attribution (Section 13 UrhG) apply only in the case of adaptation in the strict sense—under free use, the old work completely recedes into the background, so that rights to be named are generally no longer affected. However, for reasons of transparency or fairness, such an indication may be advisable but is not legally mandatory.
