“Porsche 911”

• a) The term “use” within the meaning of Sec. 32a(1) sentence 1 Copyright Act is to be interpreted to the effect that income or benefits from a use which does not encroach on the scope of protection of an author’s exploitation right cannot give rise to a claim under Sec. 32a(1) sentence 1 Copyright Act for further equitable participation on the part of the author.

• b) The principles developed by the Federal Supreme Court to distinguish free use from (non-free) adaptation continue to apply to works within the meaning of Sec. 2 Copyright Act after the deletion of Sec. 24 Copyright Act old version and the amendment of Sec. 23 Copyright Act through the Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market of 31 May 2021 (Federal Gazette I p. 1204), subject to the proviso that the criterion of “fading into the background” is to be understood in conformity with EU law in the sense of the criterion of a lack of recognisability of the creative elements giving rise to protection.