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Monday, 2 September 2013

Regional Court of Munich: no copyright protection for “sexual intercourse shown in a primitive way”

The Regional Court of Munich recently had to decide in a stimulating case concerning the file-sharing of porn films.  A link to the decision can be found here (in German), case reference:  7 O 22293/12 of 29 May 2013).

What had happened?  Porn film company Malibu Media (Malibu) obtained court orders to establish the IP addresses of Germany based file-sharers of Malibu’s porn films with the allusive titles "flexible beauty" and "young passion".  Malibu did this with a view of sending cease and desist
Malibu - the city of the same name...
perhaps not quite as titillating
letters to these users asking for financial compensation for the allegedly copyright infringing downloads, (so-called “Abmahnungen”).

After these orders were issued, two of the users/defendants filed complaints against these orders arguing, inter alia, that Malibu Media had never proven that it was the owner of the copyright so that its claim should have failed. 

The Regional Court of Munich now indeed decided in favour of the file-sharers.  After a (no doubt careful) review of the evidence, the judges found that Malibu’s name did not appear in the films so that it could not prove that it owned the copyright. This in particular since a different producer was listed in the credits of the film.  Malibu had also failed to prove that its films has been distributed within Germany so that there was doubt whether they been released there and could fall under German copyright laws (Articles 94, 95, 128 (2), 126 (2) German Copyright Act, Laufbilderschutz).

The court’s most intriguing comment was, however, that it was doubtful whether the content of the films could attract copyright protection given that the porn films did not appear to be a “personal intellectual creation” (see Article 2 (2) German Copyright Act), i.e. were “pure pornography”.  As the films merely showed “sexual intercourse in a primitive way” they were not entitled to be protected under the German copyright Act (Article 94).  This one did make me grin....


Gentoo said...

But I thought sexual intercourse was a creative act?

Francis Davey said...

Yes, but it doesn't create "works", rather it creates human beings at least some of the time. Copyright has not (yet) been extended to human beings.

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