Copyright

Copyright protects personal intellectual creations such as films, photos, texts or music and gives the person who created them the power to decide whether and how the work is used. In adult productions, this is generally not the female or male performer, but the person responsible for the image, editing and direction.

Who owns what in a production

The authors of a film are the people who shape it creatively: the director, camera operator, editor and screenwriter. In the case of a photo, it is the photographer. Being in front of the camera does not make you the author of the work, even if no recording would have been made without you.

Performers are not left without rights, however. They are treated as performing artists and have their own related rights in their performance, known as performers’ rights. In addition, there is the right to one’s own image, which independently of copyright governs whether your likeness may be published.

The production company is often not itself the author, but instead obtains the necessary rights from all participants. This is exactly what happens in the model contract when it refers to granting rights in recordings and performances.

Copyright cannot be transferred, but usage rights can be granted

German copyright law has a special feature: copyright as a whole cannot be transferred, except upon death by inheritance. Instead, the parties negotiate and pay for usage rights, meaning permissions to use the work in specific ways. They may be simple or exclusive, limited or unlimited in time and territory.

In addition, the author has moral rights, for example against distortions of the work. The law also provides for a claim to appropriate remuneration, which applies to performing artists as well. How far this claim extends in an individual case when a scene is successfully exploited for years is a matter for legal review and not a calculation that can be made in advance.

The term of protection is long. Copyright expires only 70 years after the author’s death; for films, this is calculated with reference to certain key contributors. Whoever holds the rights to a scene can continue exploiting it during this period, insofar as the contract permits.

Your own content: here, you are the author

The situation is different if you produce the content yourself. Anyone who films, photographs and edits for their own fan platform is the author of that content and decides how it is used. This is also the legal leverage available if someone redistributes your material without permission: As the rights holder, you can demand its deletion and notify platforms of the infringement.

Joint rights can quickly arise in productions with other performers. The parties should therefore agree in writing before the production who may use what.

Three points for reviewing the contract

• Which rights you grant in your performance and whether the clause distinguishes between copyright and performers’ rights
• Whether you may use excerpts from other people’s productions yourself, because doing so without permission also infringes third-party rights
• Who holds which rights in jointly produced content and who may grant licences

This entry explains the basic principles and does not replace legal advice.