"Protected works in the literary, scientific and artistic domain include, in particular:
6. cinematographic works, including works produced by processes similar to cinematography;"
"Adaptations or other transformations of a work, including, in particular, of a melody, may be published or exploited only with the author’s consent. If the newly created work maintains sufficient distance to the work used, this does not constitute adaptation or transformation within the meaning of sentence 1."
"(1) An independent work created in free use of another's work may be published and exploited without the consent of the author of the work used.
(2) Paragraph 1 does not apply to the use of a work of music by which a melody is recognizably taken from the work and used as the basis for a new work."
Marginal no. 54: "An encroachment on an exploitation right of the author already does not exist if the overall impression of the new design does not correspond to the overall impression of the used work; it is then irrelevant whether the new design is a work protected by copyright."
Marginal no. 60: "However, the external design of the Porsche 356 had only a low design level and thus a very limited scope of protection (small coin) due to the previously known design vocabulary of motor vehicles according to the circumstances at the time of creation."
Marginal no. 48: "As under the previously applicable legal situation under Section 24 UrhG aF (note: aF = old version), it should be possible to assume a sufficient distance if, in accordance with the previous case law of the Federal Court of Justice, the personal features borrowed from the existing work pale in comparison with the individual character of the new work to such an extent that the existing work is no longer recognizable or is only recognizable in rudimentary form (BT-Drucks 19/27426, p. 78). According to the explanatory memorandum (BT-Drucks. 19/27426, p. 78), it follows from the case law of the Court of Justice of the European Union, according to which there is no encroachment on the scope of copyright protection if only those parts of a pre-existing work are used which do not in themselves reveal the creative achievement of the author (cf. ECJ, Judgment of July 16, 2009 - C-5/08, GRUR 2009, 1041 nos. 48 and 51 - Infopaq International), that Union law also assumes an immanent limitation of the scope of protection of copyright."
Marginal no. 37: "If, however, the modification of the used original is so far-reaching that the reproduction has its own creative expressiveness and the borrowed personal features of the original fade in view of the peculiarity of the reproduction, there is no adaptation or other transformation within the meaning of Section 23 sentence 1 UrhG and a fortiori no reproduction within the meaning of Section 16 UrhG, but an independent work which has been created in free use of the work of another person and which, pursuant to Section 24 subsection 1 UrhG, may be published without the consent of the author of the used work."
"Art and scholarship, research, and teaching shall be free."
Notes
Initial question
Is the artistic work 11 Heroes of the Modern - digital_series#no.201011 a new work if it makes use of found footages from soccer match broadcasts?
Material
The source material used comes from recordings of a men's national soccer team competition. Eleven sequences have been finally selected, in which ejection actions of players onto the field can be seen. For aesthetic reasons on the one hand and in order to make the actions, some of which are not easily recognizable, visible on the other, the images are cropped in focus and transformed in various processing steps. A slowing down of the image speed, in part up to tenfold, serves to clarify as well as the overall artistic impression of the eleven interwoven image sequences in the finally composed media art installation. For the purpose of thematic concentration, the sequences are stripped of all contextual information, such as station name, player name, score, game, etc.. The actions of the eleven players themselves remain unaltered.
About the legal situation
Let's take a look at the legal situation for Germany, which is now likely to be comparable in other states of the European Union due to the harmonization of EU law. The German Art Copyright Act (KunstUrhG), the German Copyright Act (UrhG), the German Basic Law (Grundgesetz), and case law in Germany as well as at the European level could be taken into account.
Pursuant to § 23 (1) no. 1 of the German Art Copyright Act (KunstUrhG), portraits from the area of contemporary history may be disseminated and displayed without the consent otherwise required under Section 22. This provision will probably not apply to the newly created moving image work, but at least the exhibition display and the press material contain a fixed image.
Although it can be assumed that the players have ceded possible exploitation rights of photographically or cinematically created images to the competition organizer, it cannot be ruled out that the organizer or individual players themselves could see their image damaged. For this reason, reference should be made to the aspect of documenting contemporary history. The actions of the eleven players, moreover, remain unaltered.
§ 2 (1) UrhG (German Copyright Act) lists a non-exhaustive list of types of works, including "cinematographic works, including works created in a manner similar to cinematographic works" under number 6. Copyright protection could therefore exist for the source material. The exploitation rights are likely to have been assigned by the authors to the competition organizer and transferred by the competition organizer to broadcasters under a non-exclusive license. Since the source material represents a documentation of events in contemporary history and the creative leeway on the part of the author is thus limited, the scope of protection is likely to correspond to that of applied art and here to that of the so-called small coin. In legal terms, this generally means that identical reproductions can constitute copyright infringement, while non-identical reproductions would not constitute copyright infringement.
In the present context, § 23 (1) sentence 2 UrhG might also have to be taken into account, as well as the classifications from the BGH ruling I ZR 222-20 (see opposite), because an artistic and aesthetic processing can be shown in the newly created work: Focusing, context liberation, black-and-white transformation, inversion, slow-motion in different tempos, posterization, fine-tuning of brightnesses and contrasts according to aesthetic aspects, as well as the composition of the 11 individual sequences into a picture sequence indicate a creative achievement of their own.
In the case of applied art, such as the source material, only a narrow scope of protection is guaranteed according to the judgment of the Federal Court of Justice I ZR 222-20. Analogous to the statements in this judgment, it could be formulated that due to the pre-known set of forms of soccer game recordings at the time of creation, the design of the form only opens up a low level of design and thus a very limited scope of protection (small coin).
Conclusion
The artistic work 11 Heroes of the Modern - digital_series#no.201011 exemplarily thematizes the ejection actions of 11 soccer heroes of the modern onto the playing field, while the source material in color served to report on matches in the context of a men's soccer competition. According to the legal principles, due to the decontextualization as well as the significant composition in appearance and arrangement, it is probably not an adaptation, but a newly created work of fine conceptual art or media art with sufficient distance to the used work.
