BGH [Federal Court of Justice] June 5, 1970, I ZR 44/68 (Germany)
Aria “O schöne Jugendtage” from the opera “Der Evangelimann”
“Tanze mit mir in den Morgen (Mitternachtstango)”
Comment by Charles Cronin
The typewritten copy of the Federal Court of Justice decision (below) is not tractable to automated translation (i.e., Google Translate). Accordingly, my remarks comprise a brief summary of the Court’s decision, as well as some of my thoughts on this case.
Berlin publisher Bote & Bock brought this infringement suit against music publisher Melodie der Welt. Bote & Bock owned the copyright to Der Evangelimann, an opera written by Austrian composer Wilhelm Kienzl in 1895. Kienzl died in 1941, and his Der Evangelimann was still under copyright at the time Bote & Bock brought this suit. This post-Wagnerian work, with lyrical vocal numbers and lush orchestration, became the best-known work by Kienzl.
Bote & Bock claimed Karl Götz, author of the music of, “Tanze mit mir in der Morgen,” a song popular in the 1960s, appropriated the melody of the sentimental aria “O schöne Jugendtage” from Der Evangelimann. Whereas the purportedly infringed-upon melody is the opening, and principal, theme of “O schöne Jugendtage;” in “Tanze mit mir in der Morgen” it serves as the theme of the “chorus” – containing the catchy “hook” of popular songs from time immemorial.
[Der Evangelimann is based on Leopold Meissner’s extremely maudlin tale of redemption, involving fraternal enmity, thwarted love, and suicide. The story was the basis for a silent movie made in the 1920s; there are a number of complete recordings of the opera, as well as many old recordings of its best-known numbers, which can be enjoyed via YouTube. The music, and recorded performances, of “Tanze mit mir in der Morgen” might be described charitably as “kitsch”; more snarkily as “schlock”. YouTube again offers various recordings of the song, including those by André Rieu, and the sartorially bedizened and benighted Gerhard Wendland (à la Lawrence Welk and Liberace).]
The district court dismissed the case, and Bote & Bock ultimately appealed to the Federal High Court in Berlin, which affirmed the lower court’s dismissal. The High Court’s opinion should gladden the heart of any musician given the musical literacy it evidences, which could be found only in a German or Austrian court. Like Judge Learned Hand in Hein v. Harris (1923) and other American judges in the twentieth century, the judges of the German Federal High Court carefully identified corresponding melodic pitches between the contested works. But whereas the music copyright opinions of Learned Hand, and those of American courts in general, focus mainly on case precedents informing their decisions, the German court opinion is almost entirely devoted to musical analysis on which it grounds its resolution of the case.
The Court correctly found the pitch and intervallic sequences of the melodies of the two works to be highly similar, but that their broader musical settings differed significantly. Most impressive, however, is its discussion of earlier examples of the lyrical motif of a turn on a descending minor second followed by an upward leap of a major sixth. The court observed that this motif, with its tender affect, had long been used by composers, including Chopin and Schubert, but perhaps most brilliantly by Mozart in “Contessa perdono,” the exquisitely poignant aria sung by the Count at the end of Le nozze di Figaro.
Even if Karl Götz had not known of Kienzl’s use of this melodic device in Der Evangelimann, he was undoubtedly familiar with it given its appearance in so many earlier well-known works. It was a musical mechanism, a scène à faire, lodged in his unconscious from having encountered and responded to it in earlier works, and freely available for use by any musician.
German Federal Court of Justice decision (German) (1970): PDF