MORAL RIGHTS OF ARTISTS IN THE GERMAN LEGAL SYSTEM.
| Author | Bauer, Adrienne |
Moral rights ('Urheberpersonlichkeitsrechte') are essential in German law to preserve the special relationship of the artist to his or her work. In German law, moral rights first appeared as a legal concept in the Copyright Act of 1965. In this context, moral rights are a special form of the general right of personality of artists and illustrate the great value that the legislator attaches to the relationship of the artist to his or her work. (1) Particularly in the field of fine arts, the personality of the artist manifests itself in the work and is crucial to it. For this reason, authors are not only entitled to various possibilities of exploiting the work (one speaks of 'exploitation rights'), but also to possibilities under moral rights to protect artistic creativity. German moral rights protect not only the immaterial but also the material interests of the author. (2) The author cannot effectively waive the moral rights as such. However, it is legally permissible to conclude agreements to the effect that the author undertakes to refrain from exercising certain rights that derive from moral rights. (3) The moral right continues to exist after the death of the artist and expires seventy years after the death of the artist according to section 64 of the German Act on Copyright and Related Rights ('Urheberrechtsgesetz') (hereafter 'Copyright Act'). It should be noted, however, that the intensity with which moral rights protect the artist's relationship to his or her creative work is reduced over time. (4) This article illustrates the concrete forms in which moral rights are enshrined in law in Germany and includes current case law and practical examples of their application.
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NORMS WITH AN IMPACT ON MORAL RIGHTS
The German Copyright Act contains various provisions relating to moral rights. These include, for example, the author's right of access to copies of works ('Zugang zu Werkstucken'), (5) which enables the author to maintain access to his or her works, and the obligation to indicate the source of quotations ('Veroffentlichungsrecht'), (6) which in this respect supplements the author's right to be recognised as such. (7)
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CORE AREA OF MORAL RIGHTS
The German Copyright Act contains three provisions specifically regulating moral rights in the narrower sense. These norms encourage and benefit the creative work of artists and enable the special relationship of an artist to his or her work to be preserved.
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The Right of Publication
As the author of his or her work of art, the artist is entitled to the right of publication. Thus, he or she has the right to determine whether and how his or her work is published. (8) Before exercising this right, he or she is therefore also entitled to publicly communicate or describe the content of his or her work, as long as neither the work nor the essential content or a description of the work has been published with his or her consent. (9) The right of first publication includes the right to determine the moment and manner of publication. It also protects the artist in respect of a work which was not intended to be made known to the public. (10) The right of publication continues to exist even if the artist initially circulates his or her work only among friends. (11) The extended protection under section 12(2) of the Copyright Act allows the artist to prohibit the description of the form-giving features of the work of art in question (for example, in the case of a sculpture) before publication of his or her work. (12)
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Recognition of Authorship ('Anerkennung der Urheberschaft')
According to section 13(1) of the Copyright Act, the author has the right to be identified as the author of the work (otherwise known as the right of paternity). This right protects the author from third parties claiming authorship of the work, as is the case with plagiarism in the field of...
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