Copyright: Freedom of citation is not a clean bill of health

Since I handled a related mandate at the end of last month, I’d like to briefly point out a major misconception many blog owners and website owners have today.

Many are here, namely the opinion that the freedom of citation would provide wide rights and would allow, among others, to use foreign texts, images and other content on a large scale. This error is often accompanied by the opinion that the author must now be named so that the image can be used, for example.

Both opinions are legal nonsense. While attribution is a right of the author and can even only be conditionally waived, the same does not entitle to the unconditional use of a work, certainly not free of charge. Whether a work can be used and under what conditions is determined solely by the licensing terms of the author. If such are not known, one has in doubt no right to use at all.

But back to freedom of citation: The Copyright Act imposes strict requirements on the right to use other people’s works in the context of a citation. Probably the most important is that you actually have to quote something. Mere use, certainly not as decoration or similar, is not permitted. In principle, this also applies to computer game magazines or similar, for example, which use graphics from the games or other products in their articles or news. Even the representation of the product as such is not a quotation, because a quotation requires that one deals with the quoted work in a concrete (and not just abstract) way. While in this way thus a “screenshot gallery” or product picture collection (as far as these are not produced by oneself) would not be covered by the quotation right, a “Look, this is what XYZ looks like and …..” in connection with a screenshot could be a quotation. By the way, a screenshot as such, even made by oneself, is basically not a quote of a computer game or a computer program. This would also represent, purely dogmatically, a copyright infringement. The fact that this is often not pursued in the press and the like is only the case because either there are authorizations from the manufacturer, the graphics themselves come from the press department of the manufacturer or there is a “fair use” attitude, which is actually not present in German copyright law.

Really problematic on blogs, however, are article images and the like, which are mostly just for decoration. Here the only possibility of a legally unobjectionable use is the complete self-creation of the graphic (under consideration of other copyrights or image rights), the purchase of the graphic for example at providers such as Fotolia or the use of expressly released images, with a non-exclusive, temporally and locally unrestricted license for use, whereby it should be noted here whether the above-mentioned naming of the author is necessary and under what conditions.

Oh, and before anyone asks: I myself also comply with this, of course, as you can see in my imprint.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.