On 02 and 03 March 2021, the lectures of the participants of the seminar on film law took place under the direction of Prof. Dr. Thomas Hoeren from ITM-Münster. A broad spectrum of economic and legal topics on feature films and documentaries were in the foreground of the detailed lectures and subsequent discussions.
The event began with two lectures on the German and global documentary film market. In addition to the key economic data, it was pointed out in particular that mostly a few successful documentary films are responsible for a large part of the respective annual turnover of the entire genre. The studies presented also showed a large discrepancy within the audience distribution compared to the respective genre. Especially those genres that released the most films showed only a small share of visitors (society, biography, contemporary history). On the other hand, there are genres (especially nature & animals, music) that publish only a few films but have a large share of visitors. In a comparative law section, the differences between German, French and English copyright law were also presented and examined with regard to their respective advantages and disadvantages for the producers of documentaries.
The following lecture dealt with the question of the conditions under which films can claim copyright protection. In particular, it was pointed out to what extent factual documentaries – which had only limited protection under earlier case law – can now be fully recognised as cinematographic works. In an outlook, the growing importance of smartphone filming was also presented and it was shown that such recordings can also be protected by copyright.
Using the example of a television contract, the subsequent lecture was devoted to the control of general terms and conditions in film contract law. Special attention was paid to the question of the extent to which essential copyright principles can be regulated differently by general terms and conditions. In addition, an assessment of so-called total buy-out clauses was carried out under the law of general terms and conditions. This concerns contractual clauses which grant comprehensive rights in return for a lump sum payment – but which entail the risk of an unreasonable share for authors. In the conclusion and the subsequent discussions, possible solutions for existing inequalities were also discussed.
On the question of whether a film idea is already protected by copyright or only the finished screenplay, the next lecture examined the principles of freedom of ideas. This was followed by the difficult demarcation between idea and concrete form, as well as the significance of fables and characters already expressed in the idea. In addition to copyright law, the importance of trade secrets and competition law for the protection of ideas was also presented. Finally, it was shown under which conditions third-party works can become the basis for new film ideas and what changes will result here from the new Copyright Directive.
Film titles often contribute significantly to the recognition value of a film – which makes it all the more important for producers to protect these titles from misuse. Whereas copyright law imposes strict requirements on originality and design level for protection, protection as a trade mark is already possible if the title has a low degree of distinctiveness. The lecture will go into detail on the possibilities of defence resulting from the respective protection systems and will present the relationship between copyright and trade mark law by means of illustrative examples.
Especially in feature films, the goal of creating an illusion of reality is in the foreground – in order to achieve this, the use of film music plays an elementary role. In a vividly presented lecture, the different types of film music are described and categorised in terms of their dramaturgical significance. However, the use of film music is accompanied by many legal questions: In addition to the copyright protection of the music itself, the lecture also deals with the influence of collecting societies. Finally, the relationship between film and music authors – especially in the field of new media – is addressed.
The following two lectures dealt with the complex question of the use of other people’s works and presented the conditions under which these can be implemented in films. To this end, the special significance of the right of citation was first elaborated and it was shown how its preconditions have changed over time as a result of groundbreaking case law. Through illustrative examples, it will also be explained which quotation purposes can justify a film quotation and to what extent such a quotation is permissible. The second lecture presents the legal situation of the remix in film as a special type of use of other people’s works. The remix as a generic term encompasses a variety of different forms of use, all of which have a great influence on artistic freedom – but at the same time also affect the interests of the original authors of the work. The lecture will show to what extent copyright law creates a balance of interests here with a view to current case law. However, the new Copyright Directive (DSM Directive) will also result in changes here, which will be presented in an outlook by comparing them with the previous legal situation.
Documentary films in particular usually show true events, but often focus on the circumstances of natural persons and use their likenesses. The lecture examines the possibilities of film authors to protect the personal rights of the persons portrayed in the film. For this purpose, guidelines will be developed on the basis of case law, on the basis of which the conflicting legal interests can be reconciled and the risks of violations of personality rights can be minimised.
The last lecture deals with technical protective measures that authors can take to prevent copyright infringements. First, their significance for the media industry will be presented, before the requirements that copyright law places on such measures will be examined. The focus of the lecture is on the far-reaching conflict between the economic and idealistic interests of authors on the one hand and the interests of the general public in free information, art, culture and science on the other.
The lectures can be seen at https://youtu.be/Ovr_0DCW–g