Are music videos protected by copyright
Put videos online in a legally secure manner
Whether advertising or image films, short reviews or unboxing videos, music videos or short films - videos are more popular than ever in the age of the Internet. In particular, video portals such as YouTube and the function of embedding videos on Facebook offer the possibility of reaching a large group of recipients and are making web video more and more popular as a medium. However, numerous legal aspects must be observed in order to prevent expensive warnings.Here you will find everything you need to consider to ensure that videos are posted online in a legally secure manner.
The video has now risen to one of the most popular and effective marketing and advertising tools. This is not least due to the fact that basically everyone has the opportunity to upload short clips either to platforms such as YouTube, Facebook, Google+ etc., their own website or to third-party websites and thus to be able to reach an immense number of potential customers inexpensively within a very short time. True to the motto "Content is King", a large number of different contents (also called content) are created and published in the shortest possible time. However, you should already observe a few important legal aspects when creating videos in order to prevent possible warnings.
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1. Copyrighted material
Compilations of funny, strange videos or the parody of a piece of music are particularly popular with YouTubers. We especially like adding background music to our own videos. But every creator of a work - be it a piece of music, a computer game or a film - owns the copyrights to this work. Without the consent of the rights holder, the works may in principle neither be processed nor redistributed. The exploitation rights to the pieces of music often lie with their producers / record companies. Anyone who does not obtain the appropriate licenses here risks a warning and claims for damages.
You should also be careful when using Creative Commons content. In most cases, use is only permitted if certain requirements, such as naming the rights holder, are met. Much of the Creative Commons content is also not released for commercial use. You should be particularly careful here who earns money through advertising in addition to videos. Because this also represents a commercial use of the content.
Often short film excerpts or excerpts from old sporting events or other films are built into the video. Background music to videos is also popular. It is often not taken into account that every creator of a work - be it a piece of music, a computer game or a film - is the author and therefore owns the copyrights to this work.
Interesting too: More on copyright infringement.
If you use video clips in your own videos, you must first obtain the necessary rights from the author. None of his works may be used without his consent. This also means that no film excerpt may be edited (e.g. cut) or made publicly available (e.g. embedding in the homepage). If you still use third-party clips in your own videos, you run the risk of a costly warning from the author. Contrary to popular belief, the length of the section used does not matter. Even very short excerpts or parts of films, for example, are already protected by copyright according to the highest court rulings (BGH, judgment of December 20, 2007 - I ZR 42/05).
Pieces of music are usually works in the sense of § 2 UrhG and are therefore subject to copyright law. A distinction must be made between the composition of the piece of music and any text that may be present. Often the composer and lyricist are not identical, so that there are several authors. If several people have composed a piece, they are co-authors.
As soon as you want to use a piece of music in your videos, you must therefore obtain the necessary rights from the author. Specifically, this means that you must have the author grant you the appropriate rights before any processing (e.g. sampling), reproduction (e.g. making a copy), performance (e.g. concert), etc. of his works.
This also applies if only a small piece of music is used. The granting of rights usually takes place within the framework of written license agreements. We recommend that you always keep all contracts in writing so that you can prove individual agreements in the event of a dispute.
Often the authors have passed the management of the rights on to third parties, such as GEMA, so that a usage permit must be obtained there.
Alternatively, GEMA-free music can also be used. This applies, for example, to music that has been published under the Creative Commons license (CC license) or the respective composer of the music has died more than 70 years.
But be careful: In this case, royalty-free does not mean royalty-free. Rather, there are also corresponding license conditions for music that has been published under the CC license. These differ depending on the type of CC license. Among other things, the name of the author must be mentioned. In addition, not all pieces of music are released for commercial use. If you want to use the music commercially, you must make sure that the specific piece of music cannot be used commercially.
Photos / posters / pictures
The following applies: Almost all photos, posters and images are protected by copyright. Thus, you also need the consent of the author, i.e. the photographer, painter or designer. This applies at least if the author has not died for at least 70 years.
The authors can either manage their copyrights themselves or have them managed (granted and tracked) by third parties. This possibility exists especially for visual artists. Similar to GEMA for pieces of music, VG Bild Kunst assumes the rights of visual artists. You should therefore always contact the author or the institution that represents him if you need corresponding rights for your videos. Always have the granting of rights assured in writing so that you can provide written evidence in the event of a dispute.
You should also be careful when using photos from databases. On the one hand, it is always important to ensure that the right license is selected. There are licenses for a single use for a company, or licenses that are valid for the entire group and can also be used commercially. On the other hand, database licenses do not offer one hundred percent protection either. If the database provider has not obtained all the necessary rights from the author himself, he cannot transfer them to you. In such a case, you have not acquired any rights and are liable despite the license acquired.
It is therefore most legally secure if you mainly use content that you have created yourself. In this case you are the author and have no problems whatsoever with third-party copyrights. Here, however, the personal rights of the persons depicted must be respected.
If, on the other hand, you have commissioned third parties to create the content or would like to use other third-party photos, posters and images, you need the corresponding rights of the author. In doing so, you should urgently ensure that online use of the photos, posters and images is contractually agreed with the photographer. The photographer should also assure you in writing that he has obtained or will obtain all necessary rights himself. For example, he must also obtain rights from the models of his pictures or the owners of the locations photographed.
You should also be particularly careful with photos that you have only found using a search engine. You are also not allowed to use these without the consent of the author. If the author cannot be determined, the same applies as in the case of a lack of consent. In the event of a legal dispute, you cannot then plead that it was not possible to determine the author.
Alternatively, there are of course photos and graphics that were published under the Creative Commons license and are often free of charge. Please ensure that you comply with the corresponding license conditions of the CC licenses. Rights will only be granted if you adhere to the specified license conditions, such as naming the author.
Texts from other people are also often inserted into videos, from famous quotes from important personalities to simple press releases. However, these are also usually protected by copyright.
The protection of texts arises when a certain individual height of creation is reached. When this is the case is not always easy to determine. Signs of copyright protection are a very flowery language, creative sentence structure or a special choice of words (novels, essays, lyrics, poems).
Signs against the existence of copyright protection are e.g. a dry, technical and purpose-oriented language (legal texts, formulas). However, these criteria can only be indicative for or against copyright protection. If in doubt, you should therefore always seek legal advice before using a foreign text.
If a text has reached its height of creation and is protected by copyright, the necessary rights must also be obtained from the author.
One of the few exceptions to the requirement to obtain rights is the right to quote. According to the right to quote, parts of a work can be used without obtaining the necessary rights. Film clips or music snippets that are only used for the visual preparation of your video are not covered by the right to quote. The right to quote is often misunderstood to the extent that a small excerpt or a few seconds of a piece of music can always be used without prior granting of the rights. However, this is an error that can lead to costly warnings by the author.
The core of the quotation law is that a quotation may only be used if it fulfills a so-called "documentary function". Specifically, this means that the content of the quote must be dealt with. The quotation must therefore be used as evidence of your statement, which gives a certain quotation purpose. In addition, the source of the quotation must always be given - and the quotation must be correctly adopted.
Since the classification as a quotation is difficult, in the event of a dispute a court will have to decide whether the use was covered by the right to quotation. In any case, the more you refer to the content of the quote, the more likely you will be able to use the texts without obtaining rights beforehand.
However, you can safely use quotes from people who died more than 70 years ago, as from then on the copyright protection will expire. You can also easily insert official works such as ordinances or legal texts into the video.
2. Personal rights: the right to one's own image
Often people appear in web videos. Their personal rights must always be clarified urgently, as otherwise there is a risk of injunctive relief or, in severe cases, even obligations to pay compensation. According to the Art Copyright Act, every person has a right to their own image, which is why their image may not be published without their consent. The requirement of consent applies in particular to people who are clearly and clearly portrayed. In each individual case, it must be clarified whether, depending on the presentation (for example of a person only as an "accessory"), consent can be dispensed with in exceptional cases.
3. Product placement, advertising and surreptitious advertising
Anyone who wants to show products from well-known brands in the video or uses products from well-known brands in their video should be careful. Advertising must always be clearly recognizable as such and clearly separated from the rest of the content. The accusation of surreptitious advertising quickly arises here. This is because it is forbidden in the video not to provide advertising representations of products or product placements with the labeling required for commercial content. Depending on the content of the video, illegal advertising may result in sanctions or fines under competition law.
4. Trademark Law
If you want to use third-party brands, logos or designs, you should always observe trademark law. The owner of a trademark has the exclusive right to use his trademark. He can defend himself if his brand or a similar symbol is used in business dealings with a risk of confusion. It is therefore fundamentally illegal to use third-party brands and logos in order to advertise your own products or services through their public awareness. According to Sections 14, 15 of the Trademark Act, this applies in particular if the trademark owner himself offers precisely these products or services.
However, anyone who buys a product of a certain brand and advertises and / or describes it in a video is basically acting in accordance with the law. However, you should make sure that the allegations of fact or "test results" are also verifiable. Otherwise there may be costly warnings from the trademark owner if alleged facts are published in the dark and cannot substantiate them.
5. Protection of Minors
With all videos, it is of course always important to ensure that the regulations on youth media protection, in particular the youth media protection treaty (JMStV) and the youth protection law (JuSchG) are observed and complied with. Since children and young people are easily influenced and inexperienced in business, they are particularly protected under German law. For this reason, your video must not contain any content that is obviously suitable for seriously endangering or impairing the development of children and young people or your upbringing to become an independent and socially competent personality. Videos with content that is harmful to minors (for example a Let's Play video for a game over the age of 18) must be blocked accordingly.
As soon as telemedia is offered for business purposes, an imprint must be available in accordance with Section 5 (1) TMG. This not only applies to your website, but also to your YouTube channel or Facebook page. If the imprint obligation is violated, there is a risk of chargeable warnings.
8. Still telemedium or already radio?
In addition to content-related aspects, the web video maker must always fundamentally ask himself: Am I already broadcasting my web videos? In that case he needs a broadcast license! To distinguish between telemedia and broadcasting that requires authorization, the following criteria can provide an initial orientation: linear distribution or offers on demand, number of potential recipients, journalistic-editorial design. In the case of professional “YouTubers”, a clear classification can be difficult.
9. Warning check for online videos
Do you want to quickly and reliably check whether you have observed the most important legal aspects in order to prevent expensive warnings? The following checklist helps protect against warnings on YouTube:
✔ Respect for copyrights
✔ Respect for personal rights
✔ Beware of prohibited surreptitious advertising
✔ Trademark law
✔ Youth protection
✔ Broadcasting license for live streaming?
You can also use our Video self-check use. In just a few steps, you will receive an initial legal assessment of whether you have observed all legally important aspects under German law.
Free initial consultation
We help you to put your videos online in a legally secure manner! Our team of experts led by lawyer Rafaela Wilde is at your disposal Phone number0221/951 563 0 (advice nationwide) (Advice nationwide) will be happy to provide an initial assessment and advice.
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