German Court: TV show may not use ‘bloopers’ from other network without permission

This cat is amused

In a judgment dated 20.04.2018 (case No. 6 U 116/17), the Higher Regional Court of Cologne found that short video clips taken from other networks' TV shows for entertainment purposes are not permissible as a parody or a quotation and thus need to be licensed.

NDR, a German public broadcaster, had created a series of TV shows titled “Top Flops”. The show featured “funny” sequences (‘bloopers’) taken from various other programs, including shows belonging to RTL’s commercial television network.

NDR had not obtained a licence for any of these clips, and in court, the broadcaster argued that it didn’t need a license because the use should be considered as a parody or, alternatively, a quotation. 

This did not convince the Cologne Judges. As previously reported, Germany has not implemented an exception for parody, but courts have handled such cases as ‘free use’ under Art. 24 UrhG (Urheberrechtsgesetz, the German Copyright Act). 

In 2016, Germany’s Federal Court of Justice decided that Art. 24 UrhG should be interpreted in line with the CJEU’s definition of parody as found in the Deckmyn decision (C-201/13 - Katpost here). Under this definition the essential characteristics of parody are, ‘first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.

Applying these criteria to the case at hand while citing the FCJ’s TV Total decision, the court found no parody in the use of RTL’s sequences in “Top Flops”. The judges noted that the sequences were not ‘noticeably different’ from the originals, but rather identical. While the hosts of the show announced the upcoming sequences, they did not discuss their content in any meaningful way, so that the commentary did not transform the original clips into a parody.

Next, the judges turned to NDR’s second argument that the use of the sequences amounted to permissible quotations. Art. 51 UrhG (the German implementation of Art. 5(3)d of the Copyright Directive) allows the reproduction, distribution or communication to the public of published works ‘for the purpose of quotation so far as such use is justified to that extent by the particular purpose’.

Once again citing the FCJ’s TV Total, the Cologne judges dismissed the idea of a quotation for the use in question. Quotations require a purpose such as criticism or review - they need to be used in a context that connects to ideas of the person making the quotation. Art. 51 UrhG does not allow quotations of works for the purpose of merely displaying them for the sake of the viewers’ amusement, the judges found.

While the case is not spectacular, it provides a good summary of past and present jurisprudence on the intersection between copyright and freedom of expression.