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Terminal Stage of Deadly Disease Does Not Justify a Testator’s Inability to Make a Will

Legal Articles by GRP Rainer LLP

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Film rights as a special form of copyright - Film-Law

The question whether someone is the copyright holder of a film is answered by the Copyright Act and within that framework by the general principle of creativity.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en conclude: According to the Copyright Act’s general principle of creativity, which is enshrined in section 7, Copyright Act, the ownership of a film’s copyright depends on whether the “person” whose copyright is in question has made a creative contribution to the film. Such a contribution exists, for example, when it reflects a personal intellectual creation. The extent of this creative contribution determines the extent of the copyright. The copyright for a film can be held by an individual as well as by a corporate body. A plurality of individuals can also hold the copyright for a film jointly. However, in that case, it must be differentiated between the copyright for the film as a whole or for only a certain direct component of the film such as the screenplay, or for an independent medium such as a novel on which the film is based. The relevant time of the creative contribution is regarded as the period between the beginning of the shooting of the film (which initiates the production of the film) and completion of the final print (where the production ends). Copyright is not automatically ruled out when some participants such as the producer, who also plays the role of director, assume a double or multiple function. But for ownership of the copyright, it is necessary in such cases that there are two different contributions that can be separated from each other. If it is not possible to look at the contributions separately, the participant in question is entitled either to copyright or to intellectual property right. It is often difficult to determine the copyright holder of a film. In that respect, it can be helpful to define the roles of those participating in the production of the film beforehand to avoid uncertainties when rights are claimed. Film rights are a complicated subject, particularly when they apply on an international scale. It cannot hurt to have a lawyer at your side who will always be able to give legal advice. http://www.grprainer.com/en/Film-Law.html

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Terminal Stage of Deadly Disease Does Not Justify a Testator’s Inability to Make a Will

Legal Articles by GRP Rainer LLP

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A Testator’s Dementia Can Make The Will Invalid – Law of Succession

Legal Articles by GRP Rainer LLP

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Collection assignments and authorization to collect - Debt-Collection

A collection assignment authorizes the assignee to claim the assigned accounts receivable as his own and therefore in his own name.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London – www.grprainer.com/en conclude: If the assignee is given “only” an authority to collect, he must claim the accounts receivable in someone else’s name. A collection assignment is the complete assignment of the accounts receivable where the assignee is regarded as the new creditor of the debt. After assignment, he is therefore in the justified position to collect the receivables. However, the assignee is not authorized to dispose of the receivables, since a trustee relationship exists between him and the assignor. On that basis, he assignee has more legal authority toward the outside than toward the inside. In principle, debtors are not entitled in a collection assignment to object to the relationship between the assignee and the assignor. However, if the circumstances warrant it, the debtor has an opportunity to offset his debts against any receivables from the assignee. The assignor cannot revoke the collection assignment. The collection assignment gives the authorized person the opportunity to claim someone else’s receivables in his own name. The end effect is that he can demand that payment be made to himself. However, he cannot demand any more, since all other creditor’s rights with regard to the receivables remain with the creditor, and these can only be exercised by the creditor himself. In exchange, the debtor directs all complaints and arguments to the assignee as well as to the assignor. However, it should be observed that in this case, the debtor has no possibility to offset an account against the assignee, and that he has no rights toward the assignor due to his relationship with the assignee. Yet the assignor can always revoke the collection assignment. Under certain circumstances, the boundary between these two legal entities can present problems and is often so blurred that laymen will frequently have difficulties. Considering the resulting possibilities and legal consequences, it is of particularly great importance to delineate these entities precisely to take advantage of the possibilities and to anticipate the legal consequences. A qualified and experienced lawyer can help to keep on top of the situation and to fully utilize the existing possibilities. http://www.grprainer.com/en/Debt-Collection.html

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Requirement for Price Description under Competition Law - Germany

Legal Articles by GRP Rainer LLP

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Establishment of an employment relationship after longstanding deployment of external employees

Irrespective of any contract to produce a work, an employment relationship can emerge even in the case of external employees deployed and bound by instructions if integrated into the business.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explain: The Regional Labour Court of Baden-Württemberg ((Landesarbeitsgericht) LAG) had to rule on a case (Az.: 2 Sa 6/13) concerning the demarcation between a contract to produce a work and the temporary provision of labour. Both claimants worked as independent contractors in an IT systems house and were deployed over ten years in the defendant’s business within the framework of a contract to produce a work. In the view of the claimants, an employment relationship arose from the circumstances of the instant case, namely that they were integrated into the defendant’s business and acted in accordance with their directions. While the court of first instance dismissed the claims, the Regional Labour Court has now found in favour of the claimants. The Court took the view that the existence of a contract to produce a work cannot be assumed in the present case; instead, this was a case of temporary provision of labour. This is indicated by the fact that the claimants worked over an extended period in the defendant’s business premises and also used its equipment. Additionally, the judges accepted the existence of binding instructions vis-à-vis the defendant. The defendant argued that this was not a case of temporary provision of labour, as the claimants were not directly instructed through the business; they were allocated to the work contractor via a ticket system, who were then requested by the IT employees. Such a system was indeed contractually agreed upon, yet in practice seldom implemented. Instead, employees of the defendant directly approached the claimants and granted work assignments. The LAG observed that it did not come down to the agreement but rather the actual procedure indicating the existence of binding instructions and integration of the claimants in the defendant’s business. Thus, one had to assume the existence of an apparent contract to produce a work and the formation of an employment relationship between the claimants and the defendant. A few legal issues often arise in connection with the temporary provision of labour and contracts to produce a work. Particularly when assessing the existence of an employment relationship, the appraisal of the overall circumstances is decisive. It is advisable to obtain legal advice from a lawyer active in the field of labour law in order to conduct an individual examination of the situation. http://www.grprainer.com/en/Employment-Contract.html

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Private video recordings potentially evidence in civil proceedings

Private video recordings can potentially serve as evidence in civil proceedings, according to the Local Court of Munich (AG) in its judgment of June 6, 2013 (Az.: 343 C 4445/13).

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The Court explained in its reasoning to the, not yet binding, judgment that it essentially depends on the interests of the parties involved whether the private video recording could be used as evidence. The conflicting interests must be weighed up. In the instant case, it could be permissibly used because the video recording was meant solely for private interests at the time of recording and therefore no particular purpose was being pursued.

The Court clarified that this kind of video was not prohibited, as the recorded persons were captured accidentally. It compared the video recordings with holiday photos in which other persons end up in the picture by chance, something that can happen to anyone and everyone is aware of. These types of photos are socially acceptable and not prohibited, according to the Munich AG. The Court further assumed that these persons, who have no relationship whatsoever with the originator of the photos, remained anonymous and hence there was no legal infringement. In particular, a derogation of the basic rights would only come into question if such a picture were made public against the will of the pictured persons.

While the Court was faced with a case of a video having been made public, the interests between the parties involved had changed and an interest in preserving evidence, e.g. also for photos taken by a person involved in an accident after it takes place in order to preserve evidence, was acknowledged by the case law. In the view of the Court, neither the point in time at which the evidence was preserved, i.e. before or after the accident, nor the purpose of the photos or, as the case may be, recordings as evidence or not make a difference to the admissibility of their use.

Lawyers can help with the conduct of a case, in particular by highlighting alternative approaches in certain circumstances and in doing so or at any rate enforce claims.

http://www.grprainer.com/en/Litigation.html

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A testator's dementia can make the will invalid - Law of Succession

If the testator is suffering from dementia at the time of drawing up the will, this can lead to the invalidity of the will.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London – www.grprainer.com/en conclude: The testamentary capacity of persons with conditions affecting their cognitive abilities is a question recently dealt with by the Superior Court [Oberlandesgericht/OLG] of Munich (File No.  31 Wx 266/12). The case concerned the testamentary capacity of a testatrix suffering from Creutzfeld-Jakob Disease with progressive dementia. She had drawn up several wills. A year before her death, she had made her son her sole heir by signing a notarized will. After her death, her son applied to be the sole heir, but the probate court turned the application down, ruling that the deceased had been incapable of making a testament. The son appealed to the Superior Court.  He argued that his mother had a bright moment when she drew up the will, and that this was also apparent from the comments of the notary who had no doubt about the testatrix’s testamentary capability. However, the court-appointed expert came to a different conclusion and argued that due to her severe illness, the testatrix had not been able to act autonomously and to make free decisions. The Civil Code [BGB] states that the autonomy of the testator/testatrix is a substantial prerequisite for his/her testamentary capacity. He/she must have unlimited judgment and be clear about the content of the will as well as understanding the repercussions of the testament. That is precisely what the court found lacking in this case, and the appeal was dismissed. Misfortunes and other unhappy events can happen quickly, often burdening the affected persons with difficulties. It is therefore advisable to seek counsel at an early time about legal provisions in case of death. Lawyers with experience in the laws of inheritance can help in drawing up an effective will. Such lawyers would pay attention to the exact wishes of testators and give advice about the possible consequences of the arrangements made. Not only should the legal formalities be observed, but there are also tax implications that should be taken into consideration. For that, too, a lawyer can find the solution best suited to the testator’s intention. http://www.grprainer.com/en/Last-Will-and-Testament.html

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Employment relationship with transferred employee despite transfer agreement - Employment Law

An employment relationship with the host business can be assumed under certain circumstances despite any transfer agreement.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The Regional Labour Court of Hamm (LAG) ruled in its judgment of July 24, 2013 (Az.: 3 Sa 1749/12) that an employment relationship exists with the host business despite an employee being transferred on the basis of a services framework agreement if the employee is integrated into the business and the supplying company does not possess the necessary authority for the transfer of employees. The decision was based on circumstances according to which the claimant was in an employment relationship at a cleaning company. This cleaning company had concluded a services framework agreement with the defendant. The claimant was deployed by the cleaning firm in the defendant’s facility-management sector. A written agreement was first reached two years later. With the defendant, the claimant was provided with a fully equipped workplace, as well as equipment and work clothes resembling those of the defendant’s other employees. The claimant sought to establish with his claim that the employment relationship was not with the cleaning firm but rather with the defendant. The labour court granted the claim. The defendant’s appeal was rejected by the LAG. An employment relationship with the host business can exist despite an employee being transferred on the basis of a services framework agreement if the employee is integrated into the company and the supplying business does not possess the necessary authority for the transfer of employees. The business plan is decisive for the demarcation of the types of contract, which can be determined from the agreements of the contractual parties, as well as from the practical execution of the contract. The claimant’s employment should not be included in the framework agreement. In today’s working world, the temporary provision of labour has assumed an important role. The reason for this is that businesses are hereby able to reduce their own financial risks and gain flexibility. In the case of time or temporary work, an employer, the supplier, lends his employees to another business, the hirer. The temporary employee thus becomes active in the hirer’s business. However, the employment relationship between the employee and the employer as supplier continues to exist. In individual cases, there may be exceptions to keep in mind. For this reason, the legal advice of a lawyer versed in labour law should be sought at an early stage. http://www.grprainer.com/en/Temporary-Employment.html

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The logistics contract in commercial and transport law

The logistics contract is a so-called mixed-type agreement found in commercial and transport law.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London www.grprainer.com/en explain: The logistics contract can feature elements of various different types of agreement, such as freight contracts, agreements to produce a work or provide storage. The forwarder can commit itself for the purposes of a logistics contract to a large number of different kinds of activities, precisely because this entails a mixed-type contract which is not based on any statutory provisions. In particular, the principle of private autonomy in civil law enables the parties to the contract to extensively configure the content of the agreement. Thus, the forwarder can commit itself to services in the fields of production, distribution and ultimately also delivery of the relevant products, i.e. these days, logistics entails more than simply transportation of a commodity from one place to another. This enables the forwarder to be comprehensively incorporated into the different operating processes of its contracting entity. The parties to the contract can also effectively incorporate logistics general terms and conditions into the agreement. The logistics general terms and conditions are general terms and conditions recommended by the German Forwarder and Logistics Association that regulate the forwarder’s liability for additional logistics services which occur within the framework of an “acclamation deal” (“Zurufgeschäftes”). Overlapping can arise here with the General German Forwarder Conditions (ADSp), whereby it is ultimately not clarified which of these conditions takes precedence. Yet this could be settled in individual agreements by the contracting parties. It must be observed here, however, that the ADSp cannot be applied to all logistics contracts. Due to the fact that a logistics contract is a mixed-type agreement, it is often difficult for legal laymen to comprehend the statutory provisions. However, this is of particular significance in the area of liability; first and foremost, it can become complicated if logistics general terms and conditions or the ADSp are effectively incorporated into the logistics contract. A competent lawyer versed in the field of logistics law can help draw up contracts which satisfy the interest of the contracting parties. Furthermore, he can examine whether any claims exist and, where necessary, enforce these. http://www.grprainer.com/en/Logistics-Law.html

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BverwG: Housing Development in Weekend Home Area Potentially Admissible - Germany

Legal Articles by GRP Rainer LLP

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Advertising with Customer Reviews and Ratings May Be Potentially Misleading - Germany

Legal Articles by GRP Rainer LLP

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A divorce is not only associated with private arguments, indeed it can also lead...

A divorce is not only associated with private arguments, indeed it can also lead to legal disputes. A prenuptial agreement can potentially offer security...... A prenuptial agreement can potentially prevent disputes in the event of a divorce

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Abnahmepflicht im Baurecht - anwalt.de

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Unterhaltung einer Wohnung kann durch Entsendung eines Arbeitnehmers ins ... - anwalt.de

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Bearbeitungsentgelt für Privatkredite - Nichtzulassungsbeschwerdeverfahren anhängig

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