BGH [Federal Court of Justice] Jan. 24, 1991, I ZR 78/89 (Germany)
Related case: Peter Herbolzheimer v. Frank Farian (Germany 1991).
Tony McKay aka Exuma
“There´s a Brown Girl in the Ring”
“Brown Girl in the Ring”
Comment (…we’re still cogitating!)
German Federal Court of Justice decision (German) (1991): PDF
Google-Translated rough English version of the Court decision:
[ 1 ] Facts: The applicant is a music publisher. It claims the copyright rights to the text and music of the music title “There’s a Brown Girl in the Ring” created by TM 1972. The defendant is a record producer. He produced in 1978 with the group “Boney M.” the title “Brown Girl in the Ring”, for which he is also quoted as a lyricist and composer. The parties argue whether the defendant has taken text and melody (part B) from the M. title.
[ 2 ] With the lawsuit, the plaintiff requests information, accounting and compensation.
[ 3 ] The applicant has submitted the M. title constitutes an inherent creative editing that coming from the Caribbean folk song “There’s a Brown Girl in the Ring” is. M. had this Traditional especially a new melody part (Part B) with an extended text added. The defendant took over this part of the melody almost identically; he had edited the text unfree.
[ 4 ] The defendant opposed this. He denied that part B of the melody was from M.; this part of the melody also belongs rather to the traditional known in the Caribbean, which has been handed down in many versions without a musical version. In addition, this melody part is also not capable of copyright protection. In addition, he – the defendant – did not use the text and melody in an inadmissible manner. His work is a free adaptation of the traditional.
[ 5 ] The district court dismissed the action. The appeal was unsuccessful (see OLG Hamburg ZUM 1989, 523 ).
[ 6 ] The revision followed the applicant of its action proposals. The defendant contends that the revision should be rejected.
[ 7 ]Reasons for the decision: I. The appellate court denied infringement of copyright by the defendant and stated: There was no interference with the text rights. The applicant no longer asserted these rights in the first instance. However, her reintroduction to the appellate court is procedurally harmless because the defendant has agreed to this. However, the defendant did not edit the M. text in a dependent manner. In the applicant’s favor, it can be assumed that the text at issue does not stem from the common property which is generally accessible in Jamaica, but was invented by M. himself. From the point of view of the so-called small coin, the text is just still capable of being protected by copyright. But since it is banal and everyday, it only has a narrow protection area.
[ 8 ] An inadmissible melody extraction (Section 24 (2) UrhG) must also be denied Part B of the melody, which is now only about, is not a self-made achievement M. s. Because this part of the melody is also known; it can be found in the traditional melody of the Creole Chack Chack Group, as noted by the expert Prof. L.
[ 9 ] II. The attacks of the revision directed against this assessment are partially successful. They result in the cancellation and remittance of the music rights.
[ 10 ] 1. Insofar as the lawsuit is based on a violation of the rights to the text, the court of appeal has denied claims under Section 97 (1) UrhG without violating the law. His assumption that the defendant had created the text of the B part of his title in free use of the M. text (Section 24 (1) UrhG) stands up to revision law review.
[ 11 ] a) The defendant’s objection in his revision statement that the text rights already made an appeal for a violation of section 519 (3) no. 2 ZPO inadmissible, but cannot be accepted. The defendant fails to recognize that the appellate court did not assume an admissible appeal attack, but assumed that the plaintiff no longer asserted the text rights in the first instance and rather reintroduced them into the legal dispute in the appellate instance. The Court of Appeal considered this to be permissible because the defendant had accepted it (see §§ 263, 267 ZPO). This is not objectionable under procedural law.
[ 12 ] b) The Court of Appeal therefore rightly decided on the matter regarding the text rights.
[ 13 ] aa) For the exam in the appeal instance – in favor of the applicant assumed that M. has created the text of the B-part itself and not to resort to previously known folklore – due to the assumption of the court below.
[ 14 ] bb) Without violating the law, the Court of Appeal viewed the M. text from the point of view of the so-called small coin as just still capable of being protected by copyright and, in view of the low level of minting, also narrowed the scope of protection. The revision turns against the assumption of a narrow protection area without success.
[ 15 ] The applicant claims copyright protection for the following lines of text in the M. version:
[ 16 ] “Blue Hill water dry, / No where to wash my clothes./Remember one Saturday night, / Fryed (fried) Fish and Johnny cake./Bang, Bang, Bang Misauke.”
[ 17 ] In summary, the appellate court assessed this text as banal in itself and meant that the following characteristics could at best be seen as self-creative: the salutation to the dancing girl herself, through which a personal relationship with him and the singer is established, and the connection of poverty topos with a term from nature and maybe the use of the word Misauke.
[ 18 ] Contrary to the view of the revision, the Court of Appeal did not look at the text in an inadmissible manner, but rather – as required – based on the overall impression. This can already be seen in the fact that it did not recognize the part of the text cited by the applicant, but in connection with the overall text of the song on the one hand and the full text of the B-part originating from M. on the other. The overall impression created when the A part was included, has circumscribed, without violating the law, that the B part is referred to as a mere intermezzo by the A part and is thereby weakened in its character. It also correctly pointed out that when the applicant compared the texts of M. s and the defendant (document of 26 May
[ 19 ] “Sweet like a honeypie / You and your big brown eye”, which did not show up in the defendant, omitted itself and thus already caused a shift in the weights. In this respect, the B section brings little new. As the (known) R. version submitted by the defendant shows, the more subjective and personal turn with regard to the charms of the brown girl in a circle (“for she’s sweet like a sugar and a plum”) already belongs to public domain mold inventory. The “sweet” from the public domain text is taken over in the B section and made clear through a clichéd metaphor that the epithet “brown” can hardly be taken up more simply. This judicial understanding is not objectionable under revision law. The Court of Appeals also correctly examined whether a connection between the two lines mentioned and the rest of the text of the B-section can be established and carried out after the phrase to subjective feeling was pre-defined is only a tiny creative step if the text of the statement about the attractive Girl become an apostrophe to the girl. The following line of text “Blue Hill water dry” has given it a certain peculiarity because it has nothing to do with what has been said so far and is therefore surprising. The text that follows “No where to wash my clothes” evokes an obvious idea connection to poverty and deprivation, which is not far off for undemanding dance songs in order to clarify the fascination of dance regardless of the external circumstances. However, the Court of Appeals judged it unusual and of a certain peculiarity that this common idea was related to the drying up of the “Blue Hill water”. The revision – as favorable for them – does not object to this.
[ 20 ] However, the appeal contests that the appellate court has incompletely assessed the text by leaving the question of the relationship of lines 1 and 2 to lines 3 and 4 and the arrangement of the lines themselves unchecked. She thinks that the negative experience of the lecturer mentioned in lines 1 and 2 is thematically opposed to lines 3 and 4 because a positive memory is addressed there (Saturday night, Essen). This pair of opposites is resolved in the 5th line “Bang, Bang, Bang Misauke”.
[ 21 ]These attacks against the judicial assessment of the Court of Appeal are unfounded. The Court of Appeal agreed on lines 3 and 4 without violating the law by considering the “Saturday night reminder” mentioned there as a trivial “do-you-still” cliché and in the connection to the food as a basic human situation nothing special and Johnny as a common name. However, contrary to the assumption of the revision, the connection of the individual lines is banal and corresponds to a common cliché: the poverty topos is contrasted with the memory of better times. To what extent the subsequent “Bang, Bang …” should bring about a resolution is not clear. The Court of Appeals also correctly pointed out that on-screen words in the text of a hit or children’s song are part of the usual form.
[ 22 ] cc) The revision is also unsuccessful with its further complaint that the appellate court should have affirmed dependent processing within the meaning of Section 23 of the Copyright Act even if the narrow scope of protection it had pointed out was used.
[ 23 ] For the assessment of the question whether there is a permissible free use (§ 24 UrhG) or a dependent processing, it depends on the design level of the work used as a template. The more striking the peculiarity of the work used as a template, the less its inherent peculiarities will fade in the work created afterwards. Conversely, too high demands cannot be placed on free use if the work used as a template has only a low self-creative content. A work of lesser peculiarity merges into the reproduced work rather than a work of particular character (cf. BGH, judgment of 26 September 1980 – I ZR 17/78 , GRUR 1981, 267, 269 – Dirlada).
[ 24 ] The Court of Appeal adhered to these principles. His decision by the judge, that none of the elements found in the defendant’s text as just yet capable of being protected by copyright (cf. II. 1. b bb above), stands up to revision law review. The defendant’s contested text reads:
[ 25 ] “Old head water run dry./No where to wash my clothes./I remember one Saturday night / we had fried fish and Johnny cakes./Dan-ge-dang, dang-a-dang.”
[ 26 ]The appellate court has stated that the text of the defendant does not refer to the dancing girl herself. A personal relationship between the girl and the singer is not established. Even the imperative “remember” has become an “I remember”. No common memory of the girl and the singer is conjured up, rather only the memory of the singer is expressed. The water of the blue hill has become an “old head water”. Whatever this means, the picture of landscape and nature does not appear immediately. This interpretation of the text is unobjectionable for legal reasons. As far as the revision thinks, the defendant had the connection of the poverty topo (“No where to wash my clothes”) with a term from nature ”
[ 27 ] 2. On the other hand, the appeal judgment does not stand up to the legal review insofar as it denies an inadmissible removal of the melody (section 24 (2) UrhG) on the grounds that the B section of the M. music is not capable of being protected by copyright. In this respect, the judgments made so far are not sufficient for a final assessment.
[ 28 ]The Court of Appeal has stated that the music M. s is known in the elements that are in themselves eligible for copyright protection. In this respect, it was based on the statements made by the judicial expert at his oral hearing before the regional court. There, the expert first came to the conclusion, without giving any reasons for this, that the music shows M. s own creative traits, even though the degree of peculiarity is not high; the B-section is determined by three tones, third jump and second jump. When the defendant’s private appraiser presented a melody by the Creole Chack Chack Group (CCCG) and asked whether one could still speak of a self-created work given the third and second jump contained therein, the expert stated if he sees that now, there is the jump in third, there is also the descending second; for this he does not presume a compositional work. From this, the Court of Appeal concluded that the elements of the B-section, insofar as they could have their own content, are already known and are therefore in the public domain. The applicant itself did not substantiate the actual basis for this assessment; she did not rule out the possibility that the CCCG group would have used a melody other than that of M. are known and therefore in the public domain. The applicant itself did not substantiate the actual basis for this assessment; she did not rule out the possibility that the CCCG group would have used a melody other than that of M. are known and therefore in the public domain. The applicant itself did not substantiate the actual basis for this assessment; she did not rule out the possibility that the CCCG group would have used a melody other than that of M.
[ 29 ]This appeal by the appeals court is successfully criticized by the appeal as procedural error. The creation of the CCCG version has remained unexplained. In the private report F. of February 22, 1986 on page 13 f. explained that Prof. L. on page 10f. mentioned a cassette record of the CCCG’s tradition. The private appraiser further pointed out that he did not have this cassette; he had to rely on the information and records of Prof. L. The transcript in C major brought by Prof. L. on page 11 was added to his private report. The mentioned expert report Prof. L. is not in the files. It has – as the appeal court’s notice in the interim order of 213 U 193/87missing attachments can be seen – obviously not available to the court of appeal. The private opinion F. can be found on page 14 and the defendant’s brief of 30 November 1987 on page 3f. (GA II 443 f.) Only quotations from Prof. L.’s report. These do not provide a sufficient factual basis to assume a previously known melody. At the hearing before the regional court, in which the CCCG version was introduced as part of the hearing of the expert, the plaintiff in parallel proceedings 74 O 218/79 LG Hamburg declared without objection that Prof. L. had written down a tape that was recorded on the beach in Jamaica after publication of both the Exuma (M.) and the Defendant versions. It cannot be ruled out afterwards that the CCCG version itself is based on one of the versions at issue. The appellate court’s assumption that the applicant did not substantiate the prior knowledge of the traditional melody in the CCCG version is not free from legal errors. The applicant has always argued that, unlike the A section, the B section has no predecessors and was originally created by M. The controversy therein was sufficient here. Under the given circumstances, it would have been the defendant’s responsibility to state and prove the public good or the priority of the CCCG melody he had raised (cf. BGH, judgment of May 27, 1981 – is not free from legal errors. The applicant has always argued that, unlike the A section, the B section has no predecessors and was originally created by M. The controversy therein was sufficient here. Under the given circumstances, it would have been the defendant’s responsibility to state and prove the public good or the priority of the CCCG melody he had raised (cf. BGH, judgment of May 27, 1981 – is not free from legal errors. The applicant has always argued that, unlike the A section, the B section has no predecessors and was originally created by M. The controversy therein was sufficient here. Under the given circumstances, it would have been the defendant’s responsibility to state and prove the public good or the priority of the CCCG melody he had raised (cf. BGH, judgment of May 27, 1981 -I ZR 102/79 , GRUR 1981, 820 , 822 – tubular steel chair II; BGH, judgment of October 4, 1990 – I ZR 139/89 – operating system, rev. P. 16, intended for reprinting in BGHZ).
[ 30 ] The question of the ability of the music in the B section of the M. version to be protected by copyright requires further clarification by the judge.