GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
3.4 Using Copyrighted Images Copyright law provides for the possibility of granting someone a right to use an image or a work of art. This can be reflected in a contract. The author can grant a third party the right to use the work for certain or all types of use; this is typically done through a licence agreement that specifies the type and scope of the permitted use (eg, reproduction, distribution, making available to the public) in a licence agreement. The contractually agreed use should not be exceeded, otherwise this in turn constitutes a copyright infringe - ment. A right of use that has already been granted can only be transferred with the consent of the author. 4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork Copyright can be inherited and passes to the persons whom the author has appointed as heirs or legatees. The author can determine in their will who should receive the rights. It is important to note that copyright cannot be trans - ferred outside of a succession. The heirs can then also assert the corresponding rights associated with copyright – ie, exploitation rights or damages in the event of copyright infringe - ment or licence fees. It should be noted that the law regulates how long the right is protected. The term of copyright protection is generally 70 years after the death of the author. 4.2 Art Authentication There is generally no obligation for a foundation or another person who can assert copyrights to include a particular work by an artist in a catalogue raisonné . In German law, a catalogue raisonné is a compilation of all of an artist’s works based on scientific findings. It is a comprehensive and systematic documentation and analysis of the biography and complete works of the artist in question, often taking into account the
provenance, date of creation, technique and location of the works. However, even the creator of a catalogue raisonné cannot be forced to include a particular work against their scientific convictions. This is not mandatory with - in the framework of academic freedom. Confirmation of authenticity cannot be demanded either. 4.3 Legal Remedies Following a Declaration of Inauthenticity Where purchased artworks are declared inauthentic after purchase, this constitutes a so-called defect – ie, warranty rights are available under sales contract law. It can be assumed that, in the context of a sales con - tract for a work of art, authenticity is an essential char - acteristic of the item being purchased and was either expected or even expressly agreed upon. The seller then has the right to remedy the defect or make a replacement delivery. Remedying the defect is not possible in the case of a defect relating to authen - ticity. Authenticity cannot be restored, so that the oth - er rights can be asserted. The only option then is a replacement delivery, which is also difficult to achieve. The buyer can therefore withdraw from the contract and demand rescission or a reduction in the purchase price. However, it must be ensured that no exclusion of lia - bility has been agreed. Such an exclusion leads to the exclusion of the warranty, unless the seller has acted fraudulently and deliberately misled the buyer.
5. Cultural Heritage 5.1 Defining Cultural Heritage Concept of Cultural Property
There is no definition of cultural heritage in German law. However, there is the concept of cultural property. If a work falls under this classification, special regu - lations contained in the Cultural Property Protection Act apply.
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