{"id":16148,"date":"2025-06-12T15:54:45","date_gmt":"2025-06-12T14:54:45","guid":{"rendered":"https:\/\/ra-juedemann.de\/?p=16148"},"modified":"2025-06-12T16:02:00","modified_gmt":"2025-06-12T15:02:00","slug":"reaktion-videos-auf-was-muss-ich-achten-lg-vom-06-09-2024-14-o-291-24","status":"publish","type":"post","link":"https:\/\/ra-juedemann.de\/en\/reaktion-videos-auf-was-muss-ich-achten-lg-vom-06-09-2024-14-o-291-24\/","title":{"rendered":"Reaction Videos Rigths and Obligations – District Court Cologne 06.09.2024 – 14 O 291\/24"},"content":{"rendered":"

Legal Analysis: Reaction Videos in Light of the Judgment of August 29, 2024 \u2013 Copyright, Trademark Law, and Far-Reaching Consequences for Creators<\/strong><\/p>\n

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  1. Introduction: The Legal Grey Area of Reaction Videos<\/strong><\/li>\n<\/ol>\n

    Reaction videos have become a staple of digital media culture. They shape public opinion, provide entertainment, and enable interactive engagement with content. From humorous commentary to in-depth analysis or political statements, the spectrum is vast. However, the apparent ease with which third-party content is integrated into these videos belies a complex legal landscape\u2014especially concerning copyright and trademark law.<\/p>\n

    The judgment of August 29, 2024, is a landmark decision that clarifies and tightens the requirements for creators of reaction videos, particularly regarding the obligation to credit authors and the application of copyright exceptions. It demonstrates that the assumption that reaction videos automatically fall under a copyright exception is often a misconception. This article explores the core aspects of the judgment, expands on trademark implications, and outlines the comprehensive consequences creators may face if they fail to comply with legal requirements.<\/p>\n

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    1. The Judgment of August 29, 2024: Detailed Copyright Analysis<\/strong><\/li>\n<\/ol>\n

      The court\u2019s order of August 29, 2024, concerning a preliminary injunction, provides valuable insights into current case law on reaction videos. The applicant, seeking to prevent the removal of three specific videos from the platform “E.” and to avoid copyright warnings, was denied relief. The court\u2019s reasoning is crucial.<\/p>\n

      The court found that the applicant\u2019s public accessibility of “third-party moving images” constituted a copyright infringement. These moving images are protected at least under \u00a7 95 of the German Copyright Act (UrhG) (protection of moving images as photographic works or similar representations) or as film works (\u00a7 2(1)(6) UrhG<\/a>). The use occurred without the rights holder\u2019s consent. The applicant could not successfully invoke any statutory copyright exceptions.<\/p>\n

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      1. The Decisive Role of Author Attribution (\u00a7 63(2) UrhG<\/a>) in the Context of the Quotation Right (\u00a7 51 UrhG<\/a>)<\/strong><\/li>\n<\/ol>\n

        The core of the court\u2019s reasoning is the denial of the quotation right under \u00a7 51 UrhG<\/a>, the most important exception for using third-party works in reaction videos.<\/p>\n

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        1. a) The General Rule of Complete Author Attribution<\/strong>
          \n51 UrhG allows the reproduction, distribution, and public communication of a published work for the purpose of quotation, provided the use is justified by the specific purpose. The court acknowledged that the requirements of this provision could, in principle, be met, as the applicant engaged with the content of the moving image excerpts and commented on them as part of their own expression of opinion. However, the decisive hurdle was the failure to comply with the “formal requirements” of           \u00a7 63(2) UrhG<\/a>. According to this provision, in cases of public communication, the source\u2014including the author\u2019s name\u2014must always be indicated unless this is impossible.<\/li>\n<\/ol>\n

          The applicant had indicated the source of the used videos but did not name the author, which was necessary. The absence of author attribution was not justified. The entire quotation was thus unlawful.<\/p>\n

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          1. b) Narrow Interpretation of \u201cImpossibility\u201d of Author Attribution<\/strong>
            \nThe court emphasized that author attribution is the rule and its omission the exception. Such an exception only applies if attribution is “impossible,” and the burden of proof lies with the user. The user must specifically demonstrate what efforts were made to identify the author.<\/li>\n
          2. c) Extensive Duty to Research<\/strong>
            \nThe court stressed the duty to actively research the author. It is insufficient that the author was not listed on the platform. The applicant should have, for example, contacted the channel operator via the provided email address to inquire about authorship. The applicant\u2019s fear of political backlash was deemed understandable but not sufficient to render attribution impossible.<\/li>\n
          3. d) The Painer\/Standard Exception<\/strong>
            \nThe court distinguished this case from the ECJ\u2019s “Painer\/Standard” decision, where omission of author attribution was allowed because the secondary source was not permitted to name the author. Here, the applicant used the original source, so research was feasible.<\/li>\n
          4. e) Consequence<\/strong>
            \nViolation of the attribution requirement renders the use of the work entirely unlawful.<\/li>\n
          5. Pastiche (\u00a7 51a UrhG<\/a>): Between Legislative Intent and Restrictive Case Law<\/strong><\/li>\n<\/ol>\n

            Another central point is the rejection of the pastiche exception (\u00a7 51a UrhG<\/a>), introduced with the implementation of the DSM Directive.<\/p>\n

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            1. a) Broad Legislative Intent vs. Judicial Interpretation<\/strong>
              \nThe German legislator intended a broad concept of pastiche to cover practices like remix, meme, GIF, mash-up, fan art, fan fiction, or sampling as key elements of contemporary digital culture. The court, however, followed the restrictive approach of the German Federal Court of Justice (BGH), which sees pastiche as at least a catch-all for artistic engagement with a pre-existing work, possibly requiring humor, stylistic imitation, or homage.<\/li>\n
            2. b) Application to Reaction Videos<\/strong>
              \nThe court found no artistic engagement in the applicant\u2019s videos, only political commentary. Even if some humor was present, it was merely a stylistic device for commentary, not a protected artistic contribution.<\/li>\n
            3. c) Avoiding Redundancy with the Quotation Right<\/strong>
              \nThe court argued that accepting pastiche in such cases would render the quotation right and its limitations obsolete, which was not the intent of the EU legislator.<\/li>\n
            4. Other Exceptions: Inapplicability to Pure Commentary<\/strong><\/li>\n<\/ol>\n

              The court also considered other exceptions, such as reporting on current events (\u00a7 50 UrhG<\/a>) or caricature and parody (\u00a7 51a UrhG<\/a>), and found them inapplicable. The applicant did not caricature or parody the content but merely commented on it.<\/p>\n

              Key Takeaway:<\/strong>
              \nPure commentary or political engagement with third-party video material without full author attribution is unlawful and does not fall under broad copyright exceptions, especially not pastiche.<\/p>\n

              III. Trademark Law Challenges for Reaction Videos: A Deeper Look<\/strong><\/p>\n

              In addition to copyright, reaction videos also pose significant trademark risks. Often, the content being reacted to features trademarks, logos, slogans, or even product placements.<\/p>\n

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              1. Trademark Law Functionality and the Risk of Confusion<\/strong><\/li>\n<\/ol>\n

                Trademarks serve to distinguish the goods or services of one company from another (\u00a7 3 German Trademark Act, MarkenG). Trademark infringement occurs if a protected sign is used “in the course of trade” without the owner\u2019s consent (\u00a7 14(2) MarkenG<\/a>). For professional creators earning revenue, this is typically the case.<\/p>\n

                Risks include:<\/p>\n