GERMANY

Since the release of AI generators such as ChatGPT, Stable Diffusion or Midjourney, it seems that people have awakened to a new world. Although AI generators have been trained and presented in different versions for decades, the quality of the services now offered has reached a level where works created by artificial intelligence will be a real competitor to works created by creative people - and thus to business models based on licensing or selling these works, such as stock photo agencies or publishers.

The initially free offers of the AI generators gave everyone the opportunity to get their own impression of the quality of these services. The user numbers of the paid versions of the services released a short time later suggest that the free promotion was worthwhile. By January 2023, two months after the service's launch, ChatGPT had already reached over 100 million users, making it, by far, the fastest-growing consumer application. The image generator services Stable Diffusion, Dall-E or Midjourney are similarly in demand.

Many Aspects Unresolved

From a copyright perspective, a wide variety of aspects are of interest in connection with the use of artificial intelligence, such as:

Are the work products created by AI protected by copyright?
What impact does it have if AI-created work products are used as a first draft only and are further edited by a human?
Who is liable if the AI-produced results violate the rights of third parties?
Is the compilation of so-called 'prompts', i.e. specifications for the AI, protected under exclusive rights?
Does the prompter become a co-author?
Which images or texts may an AI provider use for AI training?

How can I protect my own works from being accessed by third-party AI crawlers?
And how can I use my works for AI training?

This is just a sample of the multitude of issues that have arisen in our practice since the beginning of this year.

Lawsuits in the US and UK

In January, the first lawsuits in this connection were announced in the US and UK. These are:

Doe v. Microsoft, GitHub, and Open AI (Nov. 3, 2022, Class Action, US District Court San Francisco, CA, USA).
Artists v. Stability AI, Midjourney, and Deviant Art (Jan. 13, 2023, Class Action, U.S. District Court San Francisco, CA, USA).
Getty Images v. Stability AI (Feb. 3, 2023, U.S. District Court Delaware, USA)
Getty Images v. Stability AI (January 2023, High Court of Justice London, UK).

Among other things, the lawsuits filed seek clarification as to whether or not the use of copyrighted works constitutes an infringement of copyright or exclusive licensing rights of the rightsholders. This interesting question is the subject of a further article, which we follow up in more depth in the article Assessment of AI Training Under German law.

Dr Ursula Feindor-Schmidt, LL.M.

Partner

Lausen

TIER 1

Bird & Bird’s presence in Germany spans more than a decade with offices in Düsseldorf, Frankfurt and Munich. The firm has long-standing expertise in complex high profile cases across multiple media segments with focus areas ranging from media regulation and press law to corporate transactions and contractual law. Based in Munich, the firm’s international media group specialises insports, copyright and unfair competition.

Lausen’s leading position is unwavering. The firm is highly reputed and widely praised by clients and competitors for its history of excellence and media sector specialisation. One competitor noted: “It is number one in Germany. Lausen has reached a position where I look at the people and quality of work and see where I would like to be in five or ten years.” The team acts for clients from the press and publishing, broadcasting, film and music sectors.

With four decades of experience, Berlin-based Raue advises media companies on all aspects of media law. The media department handles dispute resolution and litigation connected with press and publishing law, copyright and unfair competition. In highlighted work, the firm acted for collecting society VG Media in the enforcement of ancillary copyright law for press publishers. The team also advises on freedom of speech, media policy and transactional work.

SKW Schwarz is widely recognised for its entertainment law specialisation and recognised by competitors for its popularity among film industry clients. The team regularly advises German film and television production companies on distribution and license agreements. With exceptional experience in financing and funding issues, the practice in its work on structuring private equity investments for the financing of international films. Other focus areas include games, music, publishing and advertising.

TIER 2

Multiple media segments, the entertainment industry and the digital transformation collectively form the focus of FREY. Leading the practice, founding partner Dieter Frey with German and European background education is widely recognized for advice in the media and sports sector. FREY’s clients range from online media services, broadcasting companies and a leading German advertising company to production companies, publishers and artists. Partner Matthias Rudolph is highly reputed for in depth knowledge of copyright law and collecting societies' regulation and handling as well as press law, freedom of speech, and personal rights law. Besides this, FREY is deeply experienced with media regulation and media concentration and they are appointed for all questions regarding the production and distribution (broadcast, online, cable-retransmission) of content (film, video, music, sports media productions), for example licensing of rights, end user relationships (including data protection law) and marketing (influencer marketing, content marketing, social media, celebrity endorsements, testimonials).

GRAEF is one of the top law firms for entertainment law, media law and IP law. It focuses on clients from the film and television, book publishing, computer games, and live entertainment industries, as well as on public figures. Managed by Ralph Oliver Graef, the firm has exceptional experience in the financing and production of national and international films, as well as the vetting of scripts and manuscripts. Additional specialties include the right to freedom of expression, litigation PR and data protection. Clients praise the team for its top-notch legal advice, its hands-on approach and its exceptionally high success rate in court.

The IP, media and technology practice at Heuking Kühn Lüer Wojtek provides transactional, contractual and regulatory advice to gaming and entertainment clients. The firm has notable experience advising broadcasters, with one client noting: “We are a pay-television platform operator and our company relies on Heuking’s profound expertise in media, copyright, contract, company and antitrust law. We always appreciated Heuking’s professional legal advice, excellent work results and high flexibility on resources and timing.” The client added: “I would recommend the firm without hesitation.”

Media work at K&L Gates frequently involves the areas of music copyright. Lawyers also have extensive experience advising on cable distribution, antitrust and licensing agreements. The practice is also noted for its advice on film production and financing, television, gaming and sports. Peers highlight the firm for its increased activity and market visibility.

Media law specialist Nesselhauf advises on publishing law, music, copyright, film and sports. The team advises film directors, producers, and artists on contract issues, exploitation and enforcement of copyright. The team advises on pre and post publication, privacy and defamation.

The media and intellectual property department at Noerr routinely handles complex licensing and distribution matters on behalf of radio and television broadcasters. Lawyers advise on sports law and related financing, the right to freedom of expression, games development and data protection. The firm is widely known for its multiple focus areas and quality of advice across segments, which include digital media, music, film and advertising.

Preu Bohlig is widely praised by clients who note “Other than the typical situation of lawyers playing your friend and then sending huge bills, Preu Bohlig only takes your case if you are on the right

side of the case.” The media practice is focussed on press and entertainment law. The team regularly advises on defamation, copyright and competition law. Other areas of focus include film, television, theatre and advertising.

TIER 3

Advant Beiten’s media specialisation includes music, entertainment and publishing. Well versed in radio, film and multimedia law, the team regularly advises on the licensing of radio and television networks, freedom of speech and press merger control. The team assists sports sector clients on the outsourcing of professional club division, antitrust law advice on the monopolistic position of federations and financing of international championships.

A composition of three highly experienced lawyers, Bezzenberger focusses on press and media law, competition and copyright. The team is praised by competitors for its adeptness, in-depth knowledge and sector dedication. The firm’s client base includes well known individuals and companies from the sports and entertainment industries.

Boehmert & Boehmert represents public figures, newspaper and magazine publishing companies in all aspects of press or personal rights law. Lawyers advise on negotiations for an out of court settlement, draft and negotiate copyright licensing contracts and assist with matters connected with data protection and unfair competition. Competitors highlight the team for its copyright law expertise, describing lawyers as having „outstanding music copyright knowledge”.

Film and television, broadcasting, publishing and internet are CMS’ core areas of focus. The TMT group advises on production, licensing and distribution, on film funding and promotion, e-commerce and print publishing. In highlighted work lawyers assisted with the set-up of a digital marketing platform for digital terrestrial television and provided extensive advice on antitrust and media law, including representation before the Federal Cartel Office. Praising the firm’s case handling, one client noted there were “no organisational problems, no partners intervening in order to make more money without more value.”

Hertin & Partner’s focus is on copyright, publishing and entertainment law. With decades of experience, the firm advises on competition law, personal rights and handles disputes. Key practitioners include Sandra Wagner who assists with contractual matters, court settlements and advises on internet law.

McDermott Will & Emery is recognised for its sports law advice and broader media focus, which comes under the firm’s TMT practice. The firm frequently advises on television and internet-related copyright and contract law. In representative work, the team advised Yep! TV Betriebs on its cooperation agreement with ProSiebenSat.1 TV for the delivery of a daily children’s programme and purchase contracts for the corresponding programmes.The team also advises on media concentration, content distribution and disputes.

Boutique firm Schertz Bergmann is recognised by peers for its sector commitment. Lawyers advise on all media matters with work ranging from advice on sports, copyright and publishing. The firms work includes representation of public figures such as artists and politicians and extensive contract drafting and negotiation on behalf of entertainment advertising clients.

Straßer Ventroni Freytag has broad sector focus that includes entertainment, film, internet, music and advertising. The firm is also appointed by press and publishing, games and sports organisations and advises on licensing agreements for national and international media groups.

Unverzagt is known for its focus on new media, film and television and copyright. The firm’s areas of activity are broad and include privacy, data protection unfair competition. Based in Hamburg, the practice specialises in press and communication law. The firm operates out of Berlin and Cologne with media, entertainment and advertising law specialists based in each location.

The TMT division at Winheller Attorneys at Law is among Germany’s recognised firms for media on account of the team’s proficiency and expertise. According to one client “The international legal expertise of Winheller was the decisive factor for choosing the law firm. For our new cross-channel and cloud-based social business tool, Winheller also helped to manage distribution and license agreements.” The firm’s core practice areas include film and television production, computer games, music production and distribution and theatre.

TIER 4

Core areas of focus at Gleiss Lutz include music, social media and virtual entertainment. The team has extensive experience advising on regulatory issues concerning television, media policy, access to distribution channels and cable regulation. The team also advises on copyright, antitrust, corporate law and M&A transactions.

Klinkert’s media focus broadly incorporates copyright, entertainment and sports. The firm handles multijurisdictional disputes nationally and abroad, representing clients in cases before the copyright arbitration board. Lawyers advise online music companies and leading mobile content distributors. The team advises publishers in rights acquisitions and has negotiated on behalf of film producers with film fund companies.

Gaming specialist Osborne Clarke is among Germany’s leading firms for digital media and IT law. The firm is widely reputed for his in-depth knowledge of related laws and extensive involvement in complex cross-border cases. In related work the team advised Electronic Arts on computer games and related consumer protection law, data protection and IP law.

Scherenberg Legal & Licensing focusses on advice in the field of media law and intellectual property with a focus on licensing and litigation. This includes matters of reputation management, crisis communication and the representation of both talent and corporate entities in cases of press and
privacy law and also in media law agreements, such as merchandising, testimonial endorsements, publicity, advertising and trademark licensing. Oliver Scherenberg heads the practice group, joined by Michael-Matthias Nordhardt, who also has practical experience as a journalist working for a public broadcasting station. Speaking about the firm’s managing partner, one client said: “Dr Scherenberg and his team are deeply dedicated to the matters presented to them and they bring themselves up to speed even in complex matters in record time.” On the client side, Scherenberg Legal & Licensing represents, among others, the WWF (World Wide Fund for Nature) Germany, the leading European manufacturer and retailer of mobile payment systems Ingenico, the biggest German textile retailer KiK, several enterprises in the energy sector and numerous individuals. Clients praise the firm’s deep knowledge of the industry and creativity in getting the best results.

TIER 5

Frömming + Partner is notably focussed on defence work. Based in Hamburg the firm acts for business and individuals on press law with an emphasis on privacy and reputation. The team also advises film and television organisations on production contacts, licensing and copyright. Other areas of focus include music and print publishing.

Kanzlei Prof. Schweizer is highlighted by clients for “excellent work in the fields of media and competitive law in media and digital”. The firm is widely respected by competitors who note the firm’s long-standing presence and sector specialisation. Work includes advice on start-up ventures, acquisitions and freedom of speech. One client notes, “The technical expertise was sufficiently deep, and in many cases very deep and specialised, especially concerning competition regulations, copyright law and contracts for M&A.“

Kormaier & Partner specialises in content-related areas of law with an industry focus on film, broadcast, publishing, music and gaming. The practice is highlighted as an important component of the legal market with notable expertise in multiple segments of media law.