The First Civil Senate of the Federal Court of Justice, responsible inter alia for copyright law, overturned a judgment of the Hamburg Higher Regional Court which had upheld the prohibition of distributing recordings by rapper “B.” due to the use of musical pieces by a French music group.
According to their statement, the plaintiffs are members of the French Gothic band “Dark S.”, which released several music albums between 1999 and 2004. The defendant performs as a rapper under the stage name “B.”. The plaintiffs allege that in 13 of his released rap tracks, the defendant used music segments averaging ten seconds, which were electronically copied (“sampled”) from the original recordings of the group “Dark S.” without using the respective lyrics. The defendant allegedly used these segments as constantly repeating sound loops, combined them with a drum beat, and recorded his spoken word (rap) over them. The plaintiffs consider this an infringement of their copyrights. Plaintiff 1 asserts rights as a composer, while the other plaintiffs each assert rights as lyricists. They have sued the defendant, inter alia, for injunctive relief and payment of compensation for non-pecuniary damages incurred.
The Regional Court largely granted the claim. The Higher Regional Court largely dismissed the defendant's appeal. Based on its own auditory impression and partly relying on the content of expert opinions from the litigating parties, it affirmed the copyright protectability of the disputed music passages and assumed that the use of these excerpts in the defendant's music tracks infringed the plaintiffs' copyrights. With the appeal on points of law permitted by the Higher Regional Court, the defendant continues to pursue his request for dismissal of the claim.
The Federal Court of Justice overturned the appellate judgment. It dismissed the claim brought by the members of the group “Dark S.”, which was based solely on their copyrights as lyricists. Since the defendant only adopted parts of the music, but not also the lyrics of the group's pieces, there is no copyright-relevant infringement in this respect. The original connection between lyrics and music is not protected by copyright. With regard to the claim of the group's composer, the Federal Court of Justice referred the case back to the Higher Regional Court for a new hearing and decision. The findings made by the Higher Regional Court so far do not support its assumption that the parts of the musical pieces composed by plaintiff 1, which were adopted by the defendant according to the plaintiff's submission, are protected by copyright. It is not apparent by which objective characteristics the creative originality of the adopted sequences from the musical pieces composed by the plaintiff, which is required for copyright protection, is determined. The Higher Regional Court should not have assumed, without the assistance of a court-appointed expert, that the short music sequences go beyond routine creation and fulfill the requirements for copyright protection.
Judgment of the BGH of April 16, 2015 – I ZR 225/12 – Goldrapper
Regional Court Hamburg – Judgment of March 23, 2010 – 308 O 175/08
Higher Regional Court Hamburg – Judgment of October 31, 2012 – 5 U 37/10
Source: Press release of the Federal Court of Justice
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
