Winter v. Moore, et al.

Munich District Court I, 21 0 23123/00 (Dec. 3, 2008)

Comment by Charles Cronin

The Munich District Court demonstrates a Prussian thoroughness in its lengthy and exhaustive published decision in this dispute. Like George Harrison in the well-known case brought against him in the 1970s, Gary Moore (British, like Harrison) was found liable in this dispute based on the Court’s inference of his unconscious copying of the Plaintiff’s guitar riff.

The opinion carefully recounts and reviews the expert testimony of both sides, and sensibly also considers input from experts in music perception and cognition. References within its discussion of Chuck Berry, and other pop musicians, to Lehar, Rachmaninoff, Vivaldi, Corelli, Smetana, Schumann, Telemann, and well-known German religious and folk melodies, brings a smile to this reader, who sees there a reflection of the sustained deep connection, even among German jurists, to their country’s incomparable musical heritage.

But the Court’s determination of infringement is fundamentally flawed. The Court subscribes to the Plaintiff’s expert’s claim that the Plaintiff’s protectable musical expression is represented in his audio recording, and cannot be limited to elements that can be rendered in visual notation. Plaintiff claimed that visual notation could not adequately represent this protectable expression. This is a false and untenable argument based on a belief that the scope of copyrightable musical expression may change over time. It does not, and must not, otherwise crippling uncertainty will ensue as to what musical elements musicians can freely use from existing works. Musical styles, genres, sounds, etc. may change, but protectable musical expression: combinations of original melodies, harmonies, and rhythms, do not. Here, as in recent U.S. cases, the Court erred in confusing protectable musical expression from protectable sounds.

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Opinion

Munich State Court Decision (German) (2008): PDF

Munich State Court Decision (English): PDF [The English version is roughly translated by Google.]