What if the mythology could be copyrighted?


Literature plays a very important role in copyright law. We can certainly assume that the first forms of human creativity are due to the world of images. This not only applies to cave painting, one of the oldest traditional creative creations of all, but also to the language itself. Letters have ultimately developed from pictorial symbols, as can be understood particularly well with the help of hieroglyphs, but also with the example of Chinese or Japanese characters.

However, it was primarily linguistic works and their authors that gave the most important impetus for the development of copyright law: The concept of plagiarism goes back to the Roman poet Martial, who wrote a certain Fidentius who wrote the epigrams of Martial recited as his own, referred to as "plagiarius" (robbers of man); where he compared his poems with slaves, similar to how one speaks today of the “spiritual child” of the author. It was the authors who early on attached importance to the integrity of their works (see § 14 UrhG), which was less based on the now self-evident awareness of the author, but rather on protecting the text from falsification. At the time, this hardly played a role in the fine arts, as painting was primarily viewed as a craft in antiquity. With the invention of the printing press and the associated possibilities of distribution, the decisive starting signal for the development of a copyright law was finally given. Because now it was possible to distribute fonts of all kinds in large editions, which of course led to considerable tension between authors and publishers (details and details can be found in the history of copyright law).

Fiction and specialist literature

There is a decisive difference in the field of literature between the two genres of aesthetic literature on the one hand and specialist literature on the other. It is important to point out in advance that a distinction is made in copyright law between the intellectual content of a work and its form. With form are meant forms of expression and structure of a work, which can be very individual. Let us think, for example, of Immanuel Kant, who liked to express his thoughts in the form of multiple nested sentences, at the end of which one often no longer knows how the sentence actually began. Other authors use rich imagery, while still others string together short and clear thoughts. The possibilities are basically unlimited. The same content can be expressed in a myriad of different forms. While the form, i.e. the specific expression (not to be confused with style), is always protected, a distinction must be made with the content according to its type.

In fiction, the author creates a story that arises from his inner world of imagination. This story is the content of the written work. It is just as protected as the specific expression. In specialist literature, the content usually consists of scientific knowledge. This knowledge is not protected by copyright (but it may be the subject of patent law). The reason for this is that scientific research should not be impaired by copyright. In the interests of progress, it must be possible to freely take up scientific knowledge and develop it further. Critical discussion in the field of science must also be guaranteed. The right to quote in this area is therefore also directed towards the (external) form. In the scientific field, only the literal, but not the analogous adoption requires an indication of the source (§ 63 UrhG). Anyone who reproduces scientific findings in their own words and structures cannot be prosecuted for a copyright infringement if they do not reveal their sources. If in doubt, it is of course advisable to cite the source, even if you want to avoid the accusation of adorning yourself with foreign feathers.

But not everything is protected in fiction either. Where an author makes use of general sources, such as nature, historical events or works whose term of protection (§ 64 UrhG) has already expired, protection naturally only applies to what has been added himself. Mythology, for example, originated thousands of years ago when there was no copyright law. It cannot be protected any more than natural appearances and phenomena. As far as an author takes up natural or mythological elements, only the external form is protected - as with scientific works. Anyone who retells the story of Proteus in their own words will only receive copyright protection with regard to their specific form of expression. Everyone is free to repeat the same story in their own words. If something is added to the story, this part is also protected, since it arises solely from the author's inner imagination. The mythologically transmitted part, however, always remains "in the public domain".


If one applies the above principles to the genre of the work of biographies, one also comes to a limited copyright protection. Because a person's life is not subject to protection, no matter how exciting or extravagant their lifestyle may have been. The events in a person's life are nothing more than historical facts that cannot be protected by copyright. The biographer's copyright is thus again limited to the external form, i.e. to his individual interpretation of the life of the person who is biographed. The facts, no matter how laboriously collected and compiled, can be freely used by anyone (OLG Munich ZUM 1995, 428 - interview with a criminal).

Another aspect also plays an important role in the biography: the personality rights of the person who is biographed. As a rule, intimate details from a person's private life may only be published if the person concerned has consented to them.

Personal rights

The BGH has developed extensive case law on the subject and differentiates between the different spheres in which a person moves. The level of protection is lowest in the so-called public sphere. This means the area in which the person concerned consciously takes part in public life. The same applies in the area of ​​the so-called social sphere, which includes professional life, voluntary activities and the like. As a rule, encroachments on the private sphere, i.e. private life, are not permitted. Ultimately, the so-called intimate sphere is completely protected. The permissibility of interventions in the public, social and private sphere depends on a weighing of the conflicting interests, whereby the personal interest in the private sphere usually predominates. This abbreviated representation is of course only a guide. The decisive factor is always the circumstances of the individual case, which have a significant effect on the balancing of interests. In particular, freedom of expression and freedom of art and science (Art. 5 GG) can oppose the right of personality. Where there is a risk of a violation of personal rights, it is advisable to anonymize the person concerned, for example by using a pseudonym.

The personal right continues to exist even after the death of the person concerned, although it does not last forever. Unfortunately, there is no legal regulation after what time a person's right to privacy expires, so that this question has so far been more or less arbitrarily determined by case law.

Heroes, series and serial novels

A novel or a story is particularly shaped by the protagonists who appear. They give personality, convey moods and emotions and often decide between success or failure. This means that they are also an important subject of copyright protection. A character in a novel can already be protected by copyright as such, provided that its representation has a sufficient degree of individuality. This prevents other authors from building on a successful work by "kidnapping" the decisive characters in order to process them in a new story, for example in the continuation of a successful novel. It is in control of the author whether and if so how to continue a story. Parody, parody and caricature remain unaffected by this and are to be tolerated by the author insofar as they are within the scope of what is legally permissible.