BGH [Federal Court of Justice] Feb. 3, 1988, I ZR 143/86 (Germany)
|Günter Engel (aka Berd Plato)
“…wie ein Kind“
Maurice White, Eddy del Barrio, Verdine White
Comment by Charles Cronin
Defendants in this dispute were members of the once highly popular band “Earth Wind & Fire” which, in the 1970s undoubtedly had many fans in not only the United States, but also Germany and many other countries. In fact, one can safely assume that “Fantasy,” the Earth Wind and Fire song at issue here, was better known, even among German audiences, than “Wie ein Kind” [“Like a child”] of Günter Engel, the relatively obscure Plaintiff.
After both the district and appellate courts determined that the Defendants had not infringed the Plaintiff’s work, the Plaintiff’s publisher appealed to the German high court, which upheld the lower courts’ decisions. In its published judgment the court, in a characteristically German fashion, exhaustively analyzes the melodies of the two songs, and even provides (slightly sloppy) handwritten music notation of both.
The handful of notes that comprise the repeated motif of the Plaintiff’s melody may be insufficiently original to qualify for protection, but their repetition, followed by a different cadencing motif should meet the modest “Kleingelt” [“small coin” “pocket change”] quantum of originality required. When however, as here – and as in most pop music — the protected melodic expression is so prosaic, the degree of similarity between the contested works must be higher than that in disputes involving more original musical authorship.
The court realized that the Defendants’ melody is quite like the Plaintiff’s both structurally and melodically. But its deviations from the Plaintiff’s, particularly in the cadence motif, along with the court’s determination how unlikely it was that Defendants had previously heard the Plaintiff’s song, convinced it no infringement had occurred.
German Federal Court of Justice decision (German) (1988): PDF
Google-Translated rough English version of Court decision: PDF