In an appeal heard on 14 November 2016, the Berlin Court of Appeal strengthened the rights of musicians/artists: According to this ruling, GEMA is not entitled to reduce the royalty shares to which they are entitled as authors by so-called publisher shares vis-à-vis the plaintiff artists from 2010 onwards.
The background to the legal dispute is the question of how income from rights of use for copyrights is to be distributed. In its decision, the 24th Senate of the Court of Appeal transferred and continued the case law of the Federal Court of Justice (ruling of the Federal Court of Justice of 21 April 2016 - publisher's share; BGH I ZR 198/13) to the distribution for uses of copyrights. According to this ruling, GEMA may only distribute funds to those rightholders who have effectively transferred their rights. If the authors had first transferred their rights to GEMA on the basis of contractual agreements, the publishers could not derive any claims from the artists' copyrights. This is because the publishers do not have their own ancillary copyright. Accordingly, they could not claim a share in the revenue from rights of use.
The situation could be different if the authors had made specific payment instructions in favour of the publishers or had (at least partially) assigned their claims to remuneration against GEMA to the publishers. However, such special agreements in favour of the publishers were neither recognisable in a typical manner nor ascertainable in the present case of the plaintiff artists.
In today's decision, the Court of Appeal also ordered GEMA to provide the plaintiffs with information about the corresponding publisher's shares and to submit an invoice. The question of whether the artists are also entitled to payment of further royalties on the basis of the information to be provided was not decided today. First, the information must be awaited, so that only a partial judgement was pronounced.
The written reasons for the judgement are not yet available. The appeal to the Federal Supreme Court was not admitted; the appeal to the Federal Supreme Court against the non-admission of the appeal would probably not be admissible due to the fact that the required amount of appeal was not reached.
Berlin Appellate Court, 24th Civil Senate, judgment of November 14, 2016, file number 24 U 96/14.
Previous instance: Berlin Regional Court, judgment of May 13, 2014, file number 16 O 75/13
Source: Press release of the Kammergericht Berlin of 14.11.2016
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
