[1] General Content of Rights
[a] Infringement Analysis. The Act itself does not provide for any substantiality test to determine at what point copyright infringement occurs. This determination is left to the courts.
Of course, only protected materials can be infringed. When the part taken from a protected work is de minimis, that is, so small that it cannot be protected by copyright law, for example, only a few words or phrases, there is no infringement. The same reasoning may apply to other public-domain materials, notably of style and form. For example, when a painter copied, albeit quite abstractly, the typical posture of a female nude portrayed in a shot by a famous photographer, the court denied protection, finding that no protected element was taken even if the painting recognizably alluded to the photograph at issue.8)_and_footnotes(n1);.vk n1
Further, in Section 24(1), German law codifies the doctrine of free utilization (freie Benutzung), which allows a subsequent author to build upon and transform a prior protected work, especially if he takes only its unprotected elements into his new work.8)_and_footnotes(n2);.vk n2 Indeed, where German courts find an author elaborating material from a prior work in creating a new one, they are more likely to scrutinize this material closely to see if it is unprotected and the new work therefore non-infringing. In that event, careful application of the German standard of protection becomes critical in infringement analysis. However, given protected materials, these must be creatively transformed for the doctrine of free utilization to apply.8)_and_footnotes(n3);.vk n3 In cases of close copying, the defense has not been available.8)_and_footnotes(n4);.vk n4