German copyright law is characterized by the fact that it protects the individual author and their relationship to their work as their personal creation as a central element. This means that, in addition to the (economic) rights of use, the so-called moral rights of the author are also protected. These are described in more detail in Sections 12 – 14 UrhG and include the right of publication, the right to recognition of authorship and the right to protection against distortion of the work.

Can an author transfer or waive his moral rights?

It is not possible for an author to waive his moral rights in whole or in part or to transfer them to third parties. They can only make contractual arrangements in this regard, whereby strict requirements apply to protect the author and their moral rights. This is an expression of the author’s commitment to his creation and distinguishes German copyright law from copyright regulations in other countries, e.g. in Great Britain.

The right of publication, § 12 UrhG

As the right of publication is part of the moral right of the author, the author alone has the right to decide whether, when and in what way a work is made available to the public for the first time. The right of publication therefore expires when it is exercised after the first publication. However, this does not apply if a third party makes an unauthorized publication; in these cases, the author’s right of publication remains in force.

A publication is deemed to exist pursuant to § 6 para. 1 UrhG if a work has been made available to the public. This is understood to mean the general public of an interested and targeted group of people. A presentation to friends and family, on the other hand, does not constitute publication. In practice, the author usually (tacitly) agrees to the first publication and its more detailed circumstances as part of a contract of use, for example with a publisher.

Also covered by the right of publication is the so-called right to notification of content pursuant to Section 6 para. 2 UrhG. Accordingly, an author also has the sole right to publicly communicate or describe the content of his (as yet unpublished) work. The aim is therefore to protect the author from unwanted premature disclosure of his work.

The publication of a work has far-reaching legal consequences. Not only do the rights of the author under Section 12 UrhG expire. Rather, from this point onwards, third parties are also authorized to use the work – at least within the legal limits of copyright law. It has therefore left the author’s controllable sphere of control.

The right to recognition of authorship, § 13 UrhG

The right to recognition of authorship under Section 13 UrhG is often also referred to as the right of attribution. § Section 13 sentence 1 UrhG thus belongs to the core of the moral right of the author. Accordingly, the author can determine not only whether, but also with which designation he is to be named as the author of the work. This can also include, for example, pseudonyms, artists‘ marks or artists‘ names.

Copyright is often an important point of contention, especially on the internet. Photographs, for example, are often offered under free licenses but with very specific provisions on copyright attribution. If the work is then used without or with an incorrect copyright attribution, this constitutes an infringement of the moral rights of the author.

The right of attribution also includes the obligation of clear attribution. For example, it is not sufficient if all photographers are listed alphabetically at the end of an illustrated book because then it is not possible to recognize which photographic work comes from which author. It must therefore always be possible to clearly assign the author to his work.

Just as the author can decide whether and how to be named in the work, they can of course also decide that they do not wish to be named. This may be due to a desire for anonymity or to distance themselves from their work. This may be of interest, for example, if a work has been (lawfully) adapted in such a way that the author no longer wishes to be associated with this adaptation.

The protective right against distortion of the work, § 14 UrhG

In order to protect the author, he has the right to prohibit distortions and other impairments of his work if these are likely to jeopardize his legitimate interests in the work.

According to case law, distortion presupposes an interference with the substance of the work. This was seen, for example, in the case of the Berlin Central Station (as a work of architecture), which was to be altered by the installation of flat ceilings (see LG Berlin, judgment of November 28, 2006, Ref.: 16 O 240/05).

Other impairments, however, can also be triggered by the circumstances and contexts in which the work is presented. This is the case, for example, if songs (musical works) of a reputable artist are published together with musical works of right-wing extremist artists on a joint album, and the author is thus placed in the environment of this scene and its ideas (see OLG Frankfurt/Main, judgment of December 20, 1994, Ref.: 11 U 63/94).

In addition to a distortion or other impairment, this must also be capable of jeopardizing the author’s legitimate interests in the work. If this is the case, a balancing of interests is carried out, whereby the principle of prohibition of alteration applies in copyright law. Exceptional cases in which the author’s interests in the existence and integrity of the work may take a back seat can be found, for example, in the area of parody.

§ Section 14 UrhG is generally related to other provisions of copyright law that deal with changes to an author’s work, some of which are necessary (Sections 39, 62, 93 UrhG).

How can moral rights be protected and defended?

Moral rights, like exploitation and usage rights, can be defended by the author in various ways. In the event of infringement of a moral right, the author is entitled in particular to claims for injunctive relief and removal (Section 97 (1) UrhG), damages (Section 97 (2) UrhG) and information (e.g. under Section 101 UrhG or Section 242 BGB).

The author can assert these claims both out of court (by way of a warning) and in court proceedings (in some cases also in interim legal protection proceedings).