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GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

Author(s): Dreier, Thomas

Journal: JIPITEC : Journal of Intellectual Property, Information Technology and E-Commerce Law
ISSN 2190-3387

Volume: 2;
Issue: 2;
Start page: 152;
Date: 2011;

Keywords: Filming of amateur soccer games | unfair competition law | slavish imitation | taking unfair advantage of the reputation of services | photographing private property from private grounds | property right to the visual image of movable and immovable property | scope of the domiciliary right

In two cases recently decided by twodifferent senates of the German Federal SupremeCourt (Bundesgerichtshof, BGH), the following issuewas raised: To what extent can the filming of sportsevents organized by someone else, on the one hand,and the photographing of someone else’s physicalproperty, on the other hand, be legally controlled bythe organizer of the sports event and the owner ofthe property respectively? In its “” decision, the first senate of the Federal SupremeCourt concluded that the act of filming sports eventsdoes not constitute an act of unfair competition assuch, and hence is allowed even without the con-sent of the organizer of the sports event in question.However, the fifth senate, in its “Prussian gardensand parks” decision, held that photographing some-one else’s property is subject to the consent of theowner of the grounds, provided the photographs aretaken from a spot situated on the owner’s property.In spite of their different outcomes, the two cases donot necessarily contradict each other. Rather, readtogether, they may well lead to an unwanted – andunjustified – extension of exclusive protection, thuscreating a new “organizer’s” IP right.

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