On 20 November 2008, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for copyright law, ruled that anyone who takes the smallest fragments of sound from another person's sound carrier is already infringing on the rights of the sound carrier producer.
The plaintiffs are members of the music group "Kraftwerk". In 1977, the group released a sound carrier containing, among other things, the song "Metall auf Metall" ("Metal on Metal"). The 2nd and 3rd defendants are the composers of the song "Nur mir" (Only me), which the 1st defendant recorded with the singer Sabrina Setlur on recordings published in 1997. In doing so, the defendants electronically copied ("sampled") an approximately two-second rhythm sequence from the title "Metall auf Metall" and added it to the title "Nur mir" in continuous repetition. The plaintiffs believe that the defendants have thereby infringed their rights as producers of sound recordings. They have filed a claim against the defendants for injunctive relief, a declaration of their liability for damages, provision of information and surrender of the sound recordings for the purpose of destruction.
The Court of Appeal upheld the action. The Federal Supreme Court (Bundesgerichtshof) set aside the appeal judgement and referred the case back to the Court of Appeal for a new hearing and decision.
According to the Federal Court of Justice, the Court of Appeal was right to assume that the defendants had interfered with the plaintiffs' phonogram producer's right. The provision of Section 85 (1) UrhG protects the economic, organisational and technical performance of the phonogram producer necessary to establish the sound sequence on the phonogram. Since the phonogram producer performs this entrepreneurial service for the entire phonogram, there is no part of the phonogram to which part of this effort does not apply and which would therefore not be protected. An encroachment on the rights of the phonogram producer is therefore already given when the smallest fragments of sound are taken from another's phonogram. However, the Court of Appeal - according to the Federal Court of Justice - failed to examine whether the defendants could invoke the right of free use. According to Section 24 (1) UrhG, an independent work created in free use of another's work may be published and exploited without the consent of the author of the work used. According to this provision, the use of another person's phonograms without the consent of the rightholder may also be permitted if the new work is so far removed from the sequence of sounds borrowed from the phonogram used that it is to be regarded as independent. However, free use is excluded from the outset in two cases:
(1) If the person who wishes to use the sounds or tones recorded on another's phonogram for his own purposes is competent and authorised to record them himself, there is no justification for taking over the entrepreneurial performance of the phonogram producer.
(2) Furthermore, free use shall not be considered if the sound sequence recognisably taken from the sound recording used and on which the new work is based is a melody (Section 24 (2) UrhG).
The Court of Appeal will now have to examine whether the defendants can invoke the right of free use with regard to the interference with the plaintiffs' phonogram producer's right.
Judgment of the Federal Court of Justice of 20 November 2008 - I ZR 112/06 - Metal on Metal
Previous instances: LG Hamburg - Judgment of 8 October 2004 - 308 O 90/99; OLG Hamburg - Judgment of 7 June 2006 - 5 U 48/05, GRUR-,RR 2007, 3 = ZUM 2006, 758
We will inform you about the decision of the Higher Regional Court of Hamburg in this matter at the appropriate time.
Source: Press release of the Federal Supreme Court No. 214/2008 of 20 November 2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
