German film business law

There is no particular „film law” in Germany: instead, the copyright, trademark and competition law provisions shall be used as guidelines and regulations for issues concerning television and licensed films.

During the development, production, exploitation and financing of film and television programs or productions, many people are involved in various legal positions of various natures, which lead to different legal bundles that need to be analysed case-by-case.

From a practical point of view, it is first and foremost fundamental to understand what is going to be produced (a film-production, a big-screen movie, a series etc.), from who is it going to be executed and produced (producers, executives, co-producers, film director, author etc.), and where (Germany, Europe, International-wise, via IPTV etc.) is this production going to be made and settled.

What am I expected to do as an author?

As an author, you will be expected to find an exposé in Germany, not a complete script, as in the USA for example. Before an exposé is sent to the film production, the aspects embodied in the exposé should be examined in the light of whether legal protection appears to be possible. This applies particularly to titles, characters or the work as such.  In contrast to the expose, a so-called “treatment”, which is typically matched with the production of the film, will be protected by the copyright law as a precursor to the script.

Who is generally entitled to the movie legal rights?

  • Film director (own copyrights)
  • Producer (ancillary copyright)
  • Cameraman (in case of considerable artistic work)
  • Sound Engineer (in case of considerable artistic work)
  • Cutter (in case of considerable artistic work)
  • Costume designer/ Stylist (in case of his/her own inventive artistic work)
  • Production Design (in case of considerable artistic work)
  • Film actor (§§ 73-83 German UrhG*, has no copyright to the whole work/film)

Which are the typical kinds of contracts used in film production?

There are typical kinds of contracts used according to film rights; these are designed on a case-by-case and this also confirms the diversity of the various types of contracts. Please consider that these are listed below only as example:

    • Director Contracts
    • Screenplay and filming contracts
    • Cast contracts
    • Audio-visual performers contracts
    • TV License agreements
    • Video and DVD Licence Agreements
    • Format evaluation contract
    • Production Contract
    • Distribution Agreement

 

Film Promotion/ Film Financing

In Germany, dominantly highly promoted films are produced. The sponsor generally can appear as producer or co-producer with “his” corresponding production company.

International copyright law

Copyrights apply and are effective also internationally. This follows the principle of territoriality and the so-called “Lex loci protexionis”. Copyright infringements are ruled by the laws of the respective country. The national rules of this state determine the development, content and scope of the copyright. The author receives a copyright only in the respective state in which it exists according to its regulations. Foreigner’s provisions may differ from the national ones. If, for example, a copyright infringement is asserted in another state before a German court, then it must also be stated how this copyright has been created and infringed in regards to the legal ordainments of the state. The German court therefore has to apply the law of the foreign state (because of the “lex loci protexionis” principle).

Is there an internationally recognized copyright? 

No; instead, there is a large number of international copyright agreements, such as the Berne Convention (RBC or RBÜ, as it is called in Germany) of 1886 and the TRIPS of 1994; both are actually the most important international copyright agreements. The WIPO Copyright Treaty (WCT) also represents one of the most important international agreements. This regulates copyright´s matters in order to keep the RBC up to date. The WIPO Performances and Phonograms Treaty (WPPT) covers related rights of performers and phonogram producers separately. 

What does the Berne Convention regulate? 

The Berne Convention (Berne Convention for the Protection of Literary and Artistic Works) was last updated in 1979. Accordingly to Article 5 of the RBC, each Contracting State must recognize the protection of works of its own citizens. However, this has the consequence that the foreign author can be entitled to different rights in the different country, as these are differently regulated in the respective target states (contrary to the “lex loci protexionis” principle).  Nowadays, about 158 states have joined the RBC. Subsequent international agreements generally allow the RBC to be considered at least “supplementary” to the state territorial provisions.

What does the TRIPS include?

The TRIPS is an annex of the WTO provisions. Any State that wants to join the WTO must also ratify TRIPS.  Currently, the WTO and TRIPS have about 149 members. However, copyright is not the only aspect that is regulated by these agreements; they also concern the basic features of a free trade economy, while maintaining all IP rights, including in particular the technical property rights and ancillary copyrights. In addition, the member states may develop their own fundamental limits of protection.

Which effect do international agreements have?

Just like any simple contract, international agreements only work between the contracting parties, in this case, the countries that have signed them.