GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
It is sufficient if the photographer makes a person - al artistic contribution through the choice of motif, composition, exposure, perspective or other creative means and has thus created something new. Portrait or landscape photographs can be works of art if they display original design. In individual cases, it is often difficult to determine when a work of art exists. If an artistic component is denied, the photograph may constitute a photograph and, if it is the original image, also enjoys a certain degree of protection. This is not the case if it is only a copy of an existing image. 8.2 Legal Protection for Different Types of Photographs If a photograph is not a classic work of art within the meaning of the German Copyright Act, it can still be protected as a photograph. This protection applies to all photographs and comparable products, regardless of any particular artistic design or level of creativity. This means that photographs taken for technical or documentary purposes, such as passport photos, product photos or snapshots, are protected by copy - right, provided they are not merely mechanical copies of another photograph. In this case, only the photographer as the author is entitled to reproduce, distribute and make publicly available the photograph they have taken. The term of protection is 50 years from publication or, if the photograph has not been published, from production. According to case law and literature, the threshold for protection as a photograph is very low. 9. Artworks and New Technologies 9.1 NFTs An NFT (“non-fungible token”) is not a physical object (“thing”) under German law, but is treated as another object within the meaning of the German Civil Code (BGB). These are digital, non-exchangeable tokens on a blockchain that can serve as a certificate of exclusiv - ity for a specific digital or physical reference object
– eg, digital art, music or collectibles. Since it is not a physical object, it is not a thing, but also not a right, because it does not confer any classic rights. The owner only holds possession of a token. The fact that NFTs qualify as “other objects” means that they can also be the subject of contracts. Instead of a handover, a technical transfer on the blockchain is then required. In summary, under German law, an NFT is a digital, non-physical, other object that exists on the block - chain as a unique certificate and is treated as such in legal terms; transfer and taxation are governed by the respective regulations for other objects. 9.2 Counterfeit NFTs NFTs can be counterfeited. There is the technical counterfeiting of NFTs, which are created and purport to represent an original digital work, but the issuer is not authorised to do so. This can lead to criminal deception – ie, fraud or, in some cases, document forgery. If an NFT is traded without the consent of the rights- holder, this can lead to claims for damages. 10. Gifts, Donations, Trusts and Inheritance 10.1 Planning for Generational Transfer of Artworks The transfer of works of art and art collections can take place in various ways in Germany. • First, it is necessary to consider what the testator intends to do with the works of art, whether they will be kept within the family, made available to the general public, or used entirely for charitable pur - poses. It is also important to consider whether the works of art should remain as a whole or whether they may be transferred individually. • Under German law, it must be taken into account that in the event of a transfer to several heirs, they form a so-called community of heirs. They can then only make decisions jointly and no one can dis - pose of the art as a co-heir alone. It is also difficult
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