GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
1. Art Law Framework 1.1 Relevant Authorities and Legislation Legislation Art law in Germany is not a separate area of codifi - cation, but rather an interdisciplinary, cross-sectional area of law that encompasses public and private law regulations. The Cultural Property Protection Act (KGSG) plays a central role in the protection of cultural property. It regulates the import and export of cultural property, the registration of nationally valuable cultural property, and the due diligence obligations of the art trade, in particular with regard to provenance checks. It is flanked by EU regulations such as Regulation (EC) No 116/2009 and Directive 2014/60/EU. In the area of intellectual property, the Copyright Act (UrhG) is decisive. It protects works of fine art, grants moral rights, regulates exploitation rights and the resale right in the event of resale. The provisions of the German Civil Code (BGB) relat - ing to sales law are also relevant to the art trade, in particular with regard to material defects, acquisition of ownership, and the statute of limitations. Criminal law risks arise, among other things, from the German Criminal Code (StGB) in cases of fraud, handling sto - len goods or money laundering. The Money Laundering Act (GwG) also applies. Relevant Authorities The competent authorities at the federal level are, in particular, the Federal Government Commissioner for Culture and the Media and the customs authorities. At the state level, monument protection authorities and ministries of culture play a central role. The Ger - man Lost Art Foundation is of particular importance for questions of provenance and restitution.
ed into moral rights and exploitation rights in accord - ance with the Copyright Act (UrhG). Moral Rights The author has the right to recognition of their author - ship of the work and can determine whether and how the work is marked with a copyright notice. Copyright protects the author in their intellectual and personal relationship to the work. The artist’s right to a name is also understood as a special form of the general right of personality and is also protected by German Law. An artist can defend themselves against the unauthorised use of their name. Exploitation Rights The author has the exclusive right to exploit their work in physical and non-physical form, in particu - lar through reproduction, distribution, exhibition and public performance. These rights may be transferred to third parties through rights of use, but the copyright itself remains with the author and is not transferable. Performing artists also have a right to recognition of their performance and can determine whether and under what name they are named. In summary, under German law, an artist has the right to recognition as the author, the right to be named, comprehensive exploitation rights, and protection against interference with their authorship and name. In the event of violations, there is a right to rectifica - tion, cessation and, if applicable, compensation. 2.2 Copyright in Collaborative Artworks If several artists jointly create an art work without their shares being separately exploitable, they are co-authors. They then hold the copyright jointly – ie, essential decisions such as publication, exploitation and changes to the work may only be made jointly; however, no co-author may refuse to give their con - sent in bad faith.
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art
Under German law, artists as authors have certain legal rights to their own works. These rights are divid -
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