BGH decides on the right to name in copyright contract law

Introduction

On June 15, 2023, the German Federal Court of Justice (BGH) issued a significant decision in the context of copyright law under the case number I ZR 42/21. The decision focused on Section 13 UrhG, which regulates the right to name the author. The question was whether and under what conditions an author can refrain from mentioning his own name. This ruling has far-reaching implications for creatives, companies and the entire media industry and will be examined in more detail below.

The case and the decision of the BGH

The specific case revolved around the interpretation of Section 13 of the Copyright Act (UrhG), which governs the author’s right to be named. In this context, the Federal Court of Justice (BGH) was presented with the question of whether an author has the right to waive the mention of his or her own name and, if so, under what conditions this is permissible. In its ruling of June 15, 2023 under the case number I ZR 42/21, the Federal Court of Justice (BGH) clarified that such a waiver is possible in principle. However, this is not unrestricted and automatically valid. Certain conditions must be met for the waiver to be legally valid.

In particular, the waiver must be expressly and unambiguously declared. This means that general or vague formulations are not sufficient. The statement must be designed in such a way that there is no doubt as to the author’s intention to waive attribution. Furthermore, the author must fully understand and accept the scope of this waiver. This implies that the author must be aware of the possible consequences that such a waiver entails, for example with regard to the subsequent exploitation of the work or the assertion of further copyright claims. Only if these conditions are met is the waiver of attribution legally permissible under Section 13 UrhG.

Effects on practice

The BGH’s decision has far-reaching practical consequences that manifest themselves in various areas of copyright law and contractual relations. First, the ruling strengthens the freedom of contract between authors and users. This means that both parties can now enter into individual agreements with greater certainty that are specifically tailored to their needs and requirements. This is especially beneficial for creators who want to use their works in specific contexts or industries, such as the advertising industry or digital media.

In addition, the ruling sets clear guidelines that minimize the risk of litigation. By clearly defining the requirements for a waiver, both parties can now better assess which agreements are legally tenable. This reduces uncertainty and creates a more stable environment for the exploitation of copyrighted works.

Finally, the decision provides artists and other creators with more flexibility in how they structure their contracts and the use of their works. They can now decide in a more targeted manner whether and under what conditions they wish to refrain from having their name mentioned. This opens up new possibilities for licensing and marketing their works, for example in anonymous or pseudonymous contexts, and allows for a wider range of creative and commercial options.

Overall, the ruling helps to adapt German copyright law to the complex and diverse requirements of the modern media landscape and offers both authors and users a higher degree of legal certainty and flexibility.

Conclusion

The BGH’s ruling on case number I ZR 42/21 of June 15, 2023 not only marks an important milestone in the further development of German copyright law, but could also serve as a point of reference for future case law in this area. It lays a foundation for modernizing and adapting copyright law to the ever-changing digital landscape. Moreover, the decision could also attract international attention and serve as a reference point for similar issues in other jurisdictions.

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.