The First Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, has overturned a judgement of the Hamburg Higher Regional Court which had upheld the ban on the distribution of recordings by the rapper "B." because of the use of music by a French music group.
According to their representation, the plaintiffs are members of the French Gothic band "Dark S.", which released several music albums between 1999 and 2004. The defendant appears as a rapper under the stage name "B.". The plaintiffs allege that the defendant used music sections of an average of ten seconds in 13 of the rap tracks he published, which were electronically copied ("sampled") from the original recordings of the group "Dark S." without using the respective lyrics. The defendant used these sections as a constantly repeating sound loop, connected them with a drum beat and recorded his spoken word (rap) over them. The plaintiffs see this as an infringement of their copyrights. The first plaintiff claims rights as composer, the other plaintiffs each claim rights as lyricist. Among other things, they have filed a claim against the defendant for injunctive relief and payment of compensation for non-material damage suffered.
The Regional Court largely upheld the action. The Higher Regional Court dismissed most of the defendant's appeal. On the basis of its own auditory impression and with partial reference to the content of expert opinions of the parties to the dispute, it affirmed the copyrightability of the disputed music passages and assumed that the use of these excerpts in the defendant's music titles infringed the plaintiffs' copyrights. In the appeal allowed by the Upper District Court, the defendant continued to pursue its motion to dismiss the action.
The Federal Court of Justice overturned the appeal judgement. It dismissed the action brought by the members of the group "Dark S.", who relied solely on their copyrights as lyricists. Since the defendant had only taken over parts of the music, but not also the lyrics of pieces by the group, there was no copyright-relevant interference in this respect. The original connection between lyrics and music is not protected by copyright. With regard to the action brought by 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 music composed by the first plaintiff, which were taken over 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 pieces of music composed by the plaintiff, which is required for copyright protection, is determined. The Higher Regional Court should not have assumed, without the help of an expert commissioned by the court, that the short musical sequences went beyond routine creation and met the requirements for copyright protection.
Judgment of the BGH of 16 April 2015 - I ZR 225/12 - Goldrapper
LG Hamburg - Judgment of 23.3.2010 - 308 O 175/08
OLG Hamburg - Judgment of 31.10.2012 - 5 U 37/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law