The insertion of video clips is not a quotation rights in accordance with § 51 Covered the Copyright Act. The Zitierfreiheit does not allow, to do a work only for its own sake to the attention of the general public. It is not enough, that the quotes in a merely external, be inserted and attached incoherent way; is an inner connection with their own thoughts must be made. A quote is therefore generally only permitted, when it appears as Belegstelle or discussion basis for independent versions of the person quoting (BGH, Wheat 1986, 59, 60 - Spirit of Christianity; Wheat 1987, 34, 35 - Song text rendering I; Wheat 2008, 693 Tz. 42 f. – TV Total). On this assumption it anyway missing then, if Citing confined itself, to repeat the strange work, accompanied by some scanty remarks more or less mechanically extracts (BGH, Wheat 1959, 197, 199 - Verkehrskinderlied). Where film sequences integrated for its own sake in a consignment, without that they form the basis for your own content types of the moderator, for which the sequence adopted could serve as evidence or as a basis for discussion, this is not covered by the right to quote (BGH, Wheat 2008, 693 Tz. 42 f. – TV Total).
Higher Regional Court of Cologne, 6 You 114/13 from 13.12.2013 Youtube movie clips
The appeal by the defendant against the 6. June 2013 announced the verdict 14. Civil Chamber of the Landgericht Köln - 14 The 55/13 - Is rejected.
The costs of the appeal proceedings bear the defendant.
4The applicant objects to a video "(„Sara’s Show – 46 - Dragon that afflict artists "), which has been published on the YouTube channel "Nitro Shqip". The applicant has claimed, This video excerpts are included from a documentary, he himself had turned; Furthermore, there will be shown a photograph of him, to the states the rights to use him. The defendants have denied the locus standi of the applicant and their capacity to be sued. Operator of the YouTube channel is rather a company "NITRO"; they themselves would pay only for the communication between the production company and YouTube support. Anyway, it was stated that the overlays in the video to permissible quotes. The district court the defendants prohibited the use of the offending video clips and photos by injunction and confirms the ban on the opposition of the defendant by the contested judgment. For further details, reference is made to the judgment of the District Court (§ 540 Abs. 1 No.. 1 ZPO).
5With its form-- and timely inlaid and reasoned appeal pursue the defendant the target, set aside the district court judgment and dismissed the application for an interim injunction. In support of repeat and deepen their first instance lecture; Furthermore, based on, that the applicant did not timely raised his main claim. The applicant defends the appealed decision.
7The admissible appeal remains in the matter without success. The district court has gone out with right away, that the use of sequences from the video of the applicant and his photos in the video "Sara's Show 46" injunctive relief pursuant to § 97 Abs. 1 S. 1 UrhG i. In. m. §§ 94, 72 Copyright Act triggers.
81. The available reason follows from the system of protection of YouTube: If a "Copyright Infringement Notice" (Blocking Notice) des Berechtigten eine „Copyright Counter Notification“ (Counter-notification) the - alleged - occurs infringer, the rights holder must take legal action within ten days, In order to achieve a further blocking of the vector. That the applicant complained of the video end of January 2013 has discovered, is substantiated, so that the most 18. 2. 2013 has been made with the court received the request in not time urgency harmful.
92. An applicant shall be by the decision of the District Court 12. September 2013 been given a deadline of one month to collect his main claim. After the defendant initially sought annulment of the injunction because of late collection of his main claim, they have now declared this motion as done, after the applicant has the legal action is.
103. Der Antragsteller kann sich auf das deutsche Urheberrecht berufen. The defendants have denied indeed, that the applicant - as he maintains, and in his affidavit (Plant ASt 1, Bl. 8 d. A.) has stated - is Albanian national,; he was rather Kosovo Albanians. The applicant has, however, at the hearing before the Senate by submitting an official document of the city G (Residence permit and ID card replacement) made credible, that he - well - has Bulgarian citizenship. It is thus, as a member of a Member State of the European Union a German national equal (§ 120 Abs. 2 No.. 2 Copyright Act).
114. a) The applicant is also actively legitimized. The district court relied primarily on the affidavit. The defendant, however, refer to published statements on the Internet, which aimed to follow, that the applicant only copy video clips from TV. In that regard, the district court, however, has rightly noted,, that - subject to, the statements were attributable to the applicant - such an activity would not preclude, that the applicant next to it is also active as a conventional camera man. Content, too, contributes example, the statement, as Bl. 111 d. A. reproduced, not the conclusions, who would take the defendant out of her. The statement, the applicant had "neglected" his job as a cameraman, to video clips of the singers from TV record, does not exclude, that he next continues to work as a cameraman. This activity is also apparent also from the affidavit of the photographer D (Plant ASt 22), mentioned in this, he had taken the photo of the applicant on the occasion of the creation of a promotional film.
12The defendants rely on it, the applicant had stated in another context, to have nothing to do with a company "Besfort video M1" (what the applicant also confirmed in the present proceedings), although in the video of the applicant whose logo is displayed. Furthermore, the defendant point out, the applicant had stated wrongly, to be employed at the transmitter "TV Mitrovica".
13The first point speaks to the credibility of the information from the applicant; his lecture on this point is strikingly poor - he does not explain, why he used in his video a logo of a company, with which he will have nothing else to do. The second point, however, is less severe, it's simply also apparent from the documents submitted by the defendants, that there is a dispute over the name "TV Mitrovica" was between the applicant and any other company, which is considered to the detriment of the applicant. That the applicant may still be of the opinion, he could occur under this name, speaks not necessarily against the credibility of his other information.
14The doubts about the credibility of the affidavit, however, overcome by, undisputed that the applicant is in two scenes of his video can be seen in the mirror, as he leads the camera, and that the singer addresses him by his first name twice. Further, the offending video just a critique of the applicant is, so that the producer of this video in any case it ran out, the displayed video originated by the applicant. Because of these additional circumstances, the Senate expects, that the applicant has sufficient probable, that he is the creator of the video.
15b) Authorship and use rights in respect of the photos have now been made additionally credible by the affidavit of the photographer D.
165. The defendants are also called upon to defend. The defendant to 2) is in the opposite Communication "Copyright Counter Notification" as "Managing Director" of the channel operated company - the defendant to 1) - Occurred. The district court has yet to be complementary to the Service Agreement between "NITRO" and the defendant 1) supported, the defendant, however, point out relevant point, that are the party names "service" and "customer" is not used consistently in the preamble and signature line in this Agreement, so that can not be seen clearly from him, who should be called "customer" for the release of the video responsible. The district court also heard a witness, the defendant and executed to, whose testimony was unproductive; from it can not be inferred, that the witness actually manage the channel.
17The defendants have presented no concrete evidence sufficient, which may cast doubt on the accuracy or completeness of the material findings of the District Court. In particular, from the opposite message on the lock release can be inferred, that the defendant have occurred outwardly as responsible for the channel. The linguistic differentiations, they build on appeal to the terms "manager" and "Producer", not convincing. Also, a "manager" of a channel will be responsible for the "items" of videos. Otherwise, it would not have been useful, that the defendant send a counter-notice to YouTube, does not result from the, that they are merely (as a kind of translator) want to work for a third company.
18In the system as AG 2 on the statement of 27. 2. 2013 submitted e-mail from the defendant to 2) to its previous counsel states in relation to the operations in question, "Against one of the channels we have to operate on YouTube here now someone initiated a takedown" (Bl. 46 d. A.). It is also stated in the counter-notification (Plant ASt 7, Bl. 16 d. A.) literally: „Before submission I have made sure that: ** I am certain I have the legal right to post the video to YouTube“ ("Before submitting [the counter-notification] I have assured myself: I'm sure, that I am authorized, the video on YouTube set "). Even if these statements should be given content by the "Notification" system from YouTube, as the defendant to 2) stated at the hearing before the Senate, this would certainly not explain the contents of his e-mail to his former counsel.
19The fact that the district court from the testimony of the witness T, could make no specific information on the design of the production process or the collaboration with YouTube, could not argue for the responsibility of a third company, is not objectionable.
20Due to the arguments of the defendant in support of its appeal is finally assumed, that indication by the applicant at the hearing before the District Court, the respondent to 1) Concerning operative on a so-called Content-ID of YouTube, is applicable. The presentation of the defendant, this Content ID allow the defendant to 1) only, To advertise on this video, true but not after the presentation on the website of YouTube:
21"This is how Content ID
22Using Content-ID can copyright owners to identify and manage their videos to YouTube easily. Are on YouTube videos uploaded tested and compared to a database, are stored in the files,, submitted by video owners to us. If Content ID determines a match between your video and a file in this database, apply it selected by the video owner Directive. Video owners have the choice between following guidelines:
23Monetarisieren: If appear in or in front of your video ads, which have not been activated by you, has the video owner applied a monetization policy.
24Block: If the video owner has selected a lockout policy, is your video on YouTube either not visible or sound is muted. The owner can specify, given that the content of your video in some countries, other hand, are locked in other. In this case, you can not only play your video or possibly without sound, while people in other regions can view it as usual, and interact with. You can, however, on the comments page in the ,Make your own news' continues to view comments for this video, moderate and respond to.
25Watch: If the video owner selected an observation Directive, this has no effect on your video. However, the corresponding statistics appear to the audience in YouTube Analytics account of the video owner.
27How can I use Content ID?
28Only certain video owner qualify for access to Content ID. If you do not Have an exclusive rights for a significant number of content, which are frequently uploaded by YouTube's user community, Content ID is probably not suitable for you. However, if you believe, that your video meets these criteria, you can apply for registration with Content-ID. "
29(https://support.google.com/youtube/answer/2797370?p=cid_what_is&rd=1., accessed on 20. 11. 2013; similar to the system BK 1 the defendant)
30It follows, that the Content ID is a tool of the author or copyright holder primarily, so that it can monitor the use of their video by third parties. That this feature of the Content-ID in January 2013 should have fundamentally changed, is unlikely and also it does not follow from the defendants by letter of 28. 11. 2013 documents submitted. Die Aussage „We’ve added a number of features to video manager, including the ability to view, edit, and claim videos across all linked channels (not just from one channel)"Just does not mean, that there was not the ability to edit videos before. The news is rather, that these processing options now refers all connected channels and no longer limited to a single channel. It can be concluded informally, that the processing facilities - each based on a specific channel - already existed.
31The fact that the defendant have a content ID, therefore represents at least a further indication is, that their role in the context of the channel "Nitro Shqip" is not limited to a mere assistance in communicating with YouTube.
32Finally, it should be noted, that after the separate contribution of the defendant, the focus of the business model of the respondent to 1) is the support and marketing of artists, by ensuring not only for the distribution and marketing of content, but also anti-piracy technology offers. The sole responsibility Uploading Videos in this area, therefore, would fall more in this "center of gravity" as the only assistance in the communication between a third-party companies, and YouTube.
33Based on these overall circumstances - even taking into account the conflicting affidavit of the defendant to 2) - The assessment of the District Court, it is more likely than, that the Respondent 1) the channel itself operate and be responsible for setting the video, not objectionable as a result. On this basis, is also assumed, that the Respondent 1) by the defendant to 2) acted, as is clear from the emails.
346. a) The insertion of video clips is not, as the district court adopted with True Reason, by a quotation rights in accordance with § 51 Covered the Copyright Act. The Zitierfreiheit does not allow, to do a work only for its own sake to the attention of the general public. It is not enough, that the quotes in a merely external, be inserted and attached incoherent way; is an inner connection with their own thoughts must be made. A quote is therefore generally only permitted, when it appears as Belegstelle or discussion basis for independent versions of the person quoting (BGH, Wheat 1986, 59, 60 - Spirit of Christianity; Wheat 1987, 34, 35 - Song text rendering I; Wheat 2008, 693 Tz. 42 f. – TV Total). On this assumption it anyway missing then, if Citing confined itself, to repeat the strange work, accompanied by some scanty remarks more or less mechanically extracts (BGH, Wheat 1959, 197, 199 - Verkehrskinderlied). Where film sequences integrated for its own sake in a consignment, without that they form the basis for your own content types of the moderator, for which the sequence adopted could serve as evidence or as a basis for discussion, this is not covered by the right to quote (BGH, Wheat 2008, 693 Tz. 42 f. – TV Total).
35In the present case, the approach of a thought can at best make, which is to be occupied by the video sequences: The moderator leads the sequence so that a, the applicant is making fun of the singer, and then commented by saying, "I have it looked at me and it touched me, this nauseating montage has touched me. "This video is kept in the Albanian language; the accuracy of the German translation of the transcription, which has been submitted by the defendants (Anlage AG 10, Bl. 117 ff. d. A.), However, it is common ground between the parties. Apart from this evaluation lacks any discussion of the content of the sequence. The difference to the facts, of the decision of the Federal Court "TV Total" zugrundelag, in which the presenter quoted the interview as "unlikely", "Mistaken" and commented by saying, no Sketch writer would dare, propose such an improbable scene (a. a. The. S. 693), is therefore at best marginally: While there, the moderator only the content of the quote says - without explicitly draw further conclusions -, mind that the present quote constitute a proof of the criticism of the applicant. This criticism is so sweeping and so little related to the contents of the cited Scenes, that can not be spoken from a legitimate quote. In particular, at each substantive discussion of the scenes shown there is a lack. In any case, the insertion in the specific scope, as it is done here, is therefore no longer covered by a legitimate purpose quote.
36b) The insertion of the photos is in finding as a permissible quote is. It is true that the acquisition of a photo, therefore, an entire plant, be permitted, if it is covered by the citation purpose ("Bildzitat", OLG Hamburg, Wheat 1993, 666 – Altersfoto; Dreier / Schulze, Copyright Act, 4. Divide. 2013, § 51 Rn. 24). Whether the display of the photo is covered in the present case of a citation purpose, however, need not be decided, because presupposes a quote, that the cited work was published or released with the will of the author (Dreier / Schulze, Copyright Act, 4. Divide. 2013, § 51 Rn. 2; Schulz, in: Ahlberg / Götting, BeckOK Urheberrecht, Stand: 1. 9. 2013, § 51 Rn. 8; Wandtke / Bullinger / air, Copyright Act, 3. Divide. 2009, § 51 Rn. 2). This condition, would have to explain the defendant in the present context and make credible, has not been presented here for the photo of the applicant.
377. The cost is based on § 97 Abs. 1 ZPO. The verdict is in accordance with § 542 Abs. 2 S. 1 Code of Civil Procedure in force with its promulgation.