Protection of documentary films without 'level of creativity'

According to a judgment of the Federal Court of Justice (BGH), sequences of a documentary film are protected under copyright law even if they do not qualify as a 'personal intellectual creation' because their design does not meet the required minimum level of creative design.

In the case at issue, a broadcasting company had broadcast a film recording from a documentary film production showing the removal of Peter Fechter, a DDR citizen who was fatally shot by soldiers of the National People's Army at the Berlin Wall on 17.08.1962 during his escape attempt.

Against this publication, the production company at that time objected, relying on the exclusive exploitation rights transferred to it by the cameraman, and demanded cessation of the infringement and a declaration that the defendant was obligated to pay damages.

Court's decision

Both the Regional Court (LG) Berlin and the Court of Appeal (Kammergericht) had initially rejected a claim. The film sequence did not meet the requirements of a work protected by copyright law. Although the recording of a real event can constitute a work, this requires that there is not merely a juxtaposition of photographs, but rather that the selection, arrangement and collection of the material as well as the manner of arranging the individual sequences of images constitute a result of individual creation. In the present case, however, the cameraman merely recorded a coincidentally encountered event in which it was not his intention to design the filmed scenes from a dramaturgical or representational perspective. Reality, over which the cameraman had no influence, determined the sequence of action. Furthermore, the cameraman could neither influence the lighting design, sequence of images or camera work, as this was dictated by the current circumstances and the sole purpose was to record the removal of Peter Fechter. Therefore, protection as a photographic work was also denied.

The Federal Court of Justice (BGH)Judgment of 22.01.2014, I ZR 86/12decided that neighbouring rights for photographs had at least arisen in the individual images of the disputed film recording. Such neighbouring rights do not presuppose any particular level of creative design, but rather grants to whoever creates photographs or products made in a similar manner to photographs a right of protection for this achievement, which is comparable to copyright in all respects except for a few points such as duration of protection. According to the BGH, the entire film sequence resulting from them is also covered by this protection.

Although the original rights holder had not asserted any claims over a period of 48 years despite multiple unchallenged uses of the recordings on television, these were not barred by the statute of limitations. For claims for cessation of infringement, this already follows from the fact that the expiration of past claims does not provide a licence for future infringements of rights. With regard to the claim for a declaration on compensation, estoppel could come into consideration, but it must not lead to a shortening of the three-year limitation period. Therefore, estoppel only covered claims that arose before 31.12.2007 and whose limitation was no longer suspended by the filing of the action in 2011. The plaintiffs therefore had a claim for damages for unauthorised use of the film sequence after 01.01.2008.

Conclusion

Even if in an individual case a film sequence enjoys neither protection as a cinematographic work due to lack of creative height nor protection as a photographic work, sequences of a documentary film enjoy neighbouring rights as photographs, which comes very close to copyright protection.

Furthermore, despite years of tolerance by the rights holder, a user must not rely on not being held liable for future or at most three years old infringements of rights.