BGH [Federal Court of Justice] Sept. 26, 1980, I ZR 17/78 (Germany)
Complaining Work |
Defending Work |
|
Pantelis Ghinnis “Dirlada“ |
Juan Bastos “Loop Di Love” |
Comment by Charles Cronin
Overturning the Court of Appeals decision rejecting the infringement claim, the German High Court (BGH) focused on an issue raised in several recent high-profile music infringement disputes in the United States: whether, and the degree to which, copyright may protect musical expression comprised of generic musical conventions. For instance, Marcus Gray v. Katy Perry (now under appeal) and Michael Skidmore v. Led Zeppelin both deal with this issue, and the related question whether viable infringement claims based on such expression require “virtual identity” between the contested works.
In the instant case the BGH determined that the decision of the Court of Appeals contradicted that of the BGH’s “Haselnuss” decision of 1967. In “Haselnuss” the BGH found that original instrumentation and other new (even if minor) aspects of an arrangement of an unprotected folksong were sufficient to render the arrangement protectable musical expression. The Court notes, in its refreshingly frank discussion of the paltry intellectual and creative quotient of popular music as “kleine Münze” [small change] (unimaginable within the politically correct strictures of the U.S. judiciary today) that the threshold of protectable musical expression is very low. If an author’s combination of musical elements goes beyond “rote application of fundamental musical teachings” the resulting expression may be protectable if ordinary listeners find it original.
The plaintiff emphasized the fact that the defendant’s song used a “call and response” technique like that found in his song. Curiously, the Court does not take notice of the fact that while this technique may be found in Greek folk music, it is probably best known for its widespread use in African music from time immemorial, and certainly not protectable musical expression. It is difficult to comment on “Juan Bastos’s” (née Rolf Steitz, from Cologne) breathtakingly awful “Loop di Love” without knowing whether its words (“I saw you walking down the street; Your hair was hanging to you knees; Your waist was waving like a ship; The way you looked made me sick…”) and/or music (evocative of, and as simplistic as, that of a nursery rhyme) were meant parodically (“so bad they’re good”) or a terribly-gone-wrong attempt to imitate the style of American pop stars of a benighted era.
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German Federal Court of Justice decision (German) (1980): PDF
Rough Google-Translate English version of Court of Federal Justice decision:
• Order
1. Upon the plaintiff’s revision, the judgment of the 3rd Civil Senate of the Hanseatic Higher Regional Court in Hamburg of November 10, 1977 is set aside.
2. The legal dispute is also remanded to the Court of Appeals for a different hearing and decision on the costs of the appeal.
• Facts
The plaintiff has acquired the exclusive rights to use the song “Dirlada” by the Greek, Panztelis G. for the Federal Republic of Germany.
The hit “Loop di Love” was later published by the defendant 1, publisher. The text comes from Dieter D. Defendant 2 has worked on a piano version of the work on behalf of Defendant 1.
Both pieces of music are from one source – more like a chant. – each one-bar motif alternating between soloist and choir with instrumental accompaniment. “Dirlada” contains a Greek text; the defendant composition an English text. The music is formed around the tone sequence “a – b- c#”. In both pieces, it is constructed according to a pattern that is particularly common with hits. The first two bars contain the motif that characterizes the melodies. They are repeated in bars 3 and 4. In bars 5 and 6 the phrase is continued melodically with a change in harmony, in bars 7 and 8 there is a return to the starting harmony with the same phrase as in bars 1 and 2. Bars 9 to 12 represent the middle section with melodic continuation with renewed harmony change, while bars 13 to 16 essentially correspond again to bars 1 to 4. The harmonic sequence is largely the same in both pieces of music.
The applicant submitted that “Dirlada” was used in an inadmissible manner in the composition of the defendant. On the one hand, the melody is recognizable. On the other hand, it is also derivative of it. The overall impression is essentially shaped by the shape and the way of development, which largely coincided in both pieces of music. In this respect, the applicant relies on the confidential report submitted by Professor de la M.
With the lawsuit, the plaintiff requests information and accounts of the profit generated by the exploitation of the title “Loop di Love” and states that the defendants must also surrender any future profit to him.
The defendants denied that they had known the song “Dirlada” and used it as the basis for their composition. However, they concede that the defending composer referred to public domain Greek folk music (including a sponge diver song). In addition, they took the view that “Dirlada” could not be protected. The song does not contain any creative elements. The tone sequence used is also part of the musical common good. Moreover, the similarity between the two pieces of music is also low. The few matches are irrelevant.
The regional court has given an opinion on the question of whether the defendant has taken 3 essential parts of the melody from the song “Dirlada”. The expert lawyer F. answered no to that question. The district court then dismissed the lawsuit on the grounds that the few matches, given the low degree of originality of the melody of “Dirlada”, were not sufficient to make a claim. In any case, the protectability of the melody is questionable because of the simplicity of the motive and the prior use submitted by the defendant. “Dirlada” does not contain any other protectable elements that the de la M. report addresses. The formal design, the harmony, and the alternating melody between solo and choir belong to the common good.
The Higher Regional Court rejected the applicant’s appeal. This is countered by applicant’s revision, used to pursue the complaint. The defendants request rejection of the revision.
• Reasons for decision
I.
The Court of Appeal considers that the plaintiff’s rights have not been infringed. It denies both dependent derivation (Section 23 UrhG) and melodic appropriation (Section 24 (2) UrhG) for subjective reasons and states: The complaint can only be successful if the Defendant in his composition writes the song ” Dirlada “and consciously or unconsciously resorted to it. The applicant has not proven this. According to the testimony of the witness D., which the Court of Appeal assessed more closely, “Dirlada” probably did not form the basis of defendant’s work. In addition, according to the parties, it must be assumed that the record entitled “Dirlada” was not on the market in Germany at the time. Even according to the rules of prima facie evidence, it cannot be concluded that the defendant used “Dirlada” – consciously or unconsciously. That could not be based on a comparison of the sheet music or the two-sided recordings. Based on the expert opinion F., the Court of Appeal came to the conclusion that the defendant presumably had not taken essential parts of his melody from the song “Dirlada”. In conclusion, the court of appeal states that the two pieces of music did not match in their overall effect.
The appeal judgment does not stand up to legal review.
II.
However, the factual finding that the plaintiff had not proven the defendant’s knowledge of the work cannot be objected to. The revision rightly points out that a certain contradiction in the testimony of the witness D. is not clearly expressed in the appeal judgment. The witness initially weakened his statement that the record entitled “Dirlada” was not available when the defendant’s composition was recorded, but later – after the hearing of “Dirlada” – weakened again, contrary to the assumption of the Court of Appeal, by testifying, at the time of recording they had something similar, he didn’t know whether it was “Dirlada”. The finding that “Dirlada” was the basis of the defendant’s composition, therefore cannot be met. Rather, it cannot be determined positively or negatively whether the defendant knew the record.
III.
The appellate court then – consequently – at the subjective starting point it chose – checked whether it is possible to find correspondences which, according to the rules of prima facie evidence (cf. BGH GRUR 1971, 266, 268 – Magdalenen aria) allow a conclusion that the defendant as the author of the later work used the earlier plaintiff’s work. In doing so, it correctly recognized that only the similarities within the scope of protection of the older work are legally significant; both from the point of view of a dependent revision (§ 23 UrhG) of the song “Dirlada” as a whole as well as a melody extraction (§ 24 Abs. 2 UrhG).
1.
The appellate court affirmed the protection of the song “Dirlada” in its entirety, but denied the claim that defendant’s work was a dependent revision of it.
a)
Regarding the ability to protect, the Court of Appeals summarized that the plaintiff should be granted that the composition “Dirlada” was copyrightable from the musical point of view of the overall effect of all individual elements. In this regard, it has stated elsewhere that even the familiarization of well-known, public domain intellectual property can be capable of copyright protection if this results in a special, self-creative effect and design. The copyright protection does not extend to the public domain elements, but is limited from the outset only to the characteristic overall characteristics. As far as public domain melodies, common harmony, and processing are used, the boundaries should be drawn. Professor de la M. fails to recognize in his expert opinion that the way of processing in particular belongs to the composer’s skill working with public domain elements. The characteristic peculiarity and thus the protective ability of “Dirlada” can certainly not be justified by the fact that the beginning of the phrase in the lead singer is flexible, the conclusion of the phrase, on the other hand, is heavy and accentuated, while in the choir the beginning and end uses a quarter note, so that the beginning and the end are heavy.
These statements are not without legal concerns.
The Court of Appeal correctly found that the plaintiff composition must have a creative peculiarity in order to be recognized as a personal intellectual creation within the meaning of Section 2 (2) of the Copyright Act, and thus as a protective musical work. The creative peculiarity of musical works lies in their individual aesthetic expressiveness. However, the individual aesthetic content requirement must not be too high. It is sufficient that the formative activity of the composer – as is common with pop music – has only a low degree of creation (cf. BGH GRUR 1968, 321, 324 – Hazelnut). The artistic value is not important. It has long been recognized in copyright law that there is the so-called small work, i.e, simple, but intellectual creations just worthy of protection. This idea also existed when the current copyright law was enacted. In the explanatory memorandum to § 2 of the government bill, it is expressly emphasized that works of low creative value, the so-called “small change”, still enjoy protection (BT-Drucks. IV / 270 p. 38). In principle, the Court of Appeal did not fail to recognize that purely technical work, which is not intellectual, and all public domain elements, are outside the scope of protection; so are the formal design elements, which are based on the teachings of harmony, rhythm and melody or are expressed in the alternating song between soloist and choir.
The appellate court’s view, however, is subject to legal concerns that the method of developing musical ideas is generally attributable to the composer’s skill in the public domain. The Court of Appeal thus contradicts the decision of the Senate of November 3, 1967 (GRUR 1968, 321 ff – Hazelnut). The protected work was found there primarily in the implementation of the instrumentation and orchestration. The court of appeal has overlooked the fact that the specific design is also shaped by the way it is developed and that the creative idiosyncrasy of a work is also determined by the individual aesthetic of the overall impression expressed in this design. The formative performance of a musical work becomes protectable, if it goes beyond the manual application of fundamental musical teachings. This can also be the case with an alternate song if it has an individual musical expression. Whether this is the case here with the happy, more like a chanting (with text sound paintings) alternating chants between soloist and choir (according to expert opinions FS 9 and 10) for the song “Dirlada” still requires a judicial assessment, for which expert help is indispensable. This also applies in particular to the characteristics in the interchangeable singing that were highlighted in the private report de la M. (p. 4 f. Finally, the rhythm and structure of the tone sequences as elements of the sound design can also be significant for the expressiveness, but above all is the melody. It is crucial for the question of the ability to protect whether the overall impression based on the interaction of all these elements gives the required degree of originality. The assessment is based on the opinion of the public, who are reasonably familiar with musical questions and open to them.
b)
Since the court of appeals did not take the processing of the composition “Dirlada” into account in the context of the creative idiosyncrasies, it did not check the opposing compositions to determine whether there were any relevant copyright similarities. Given that, the appeal judgment cannot stand. The court of appeal will not be able to rely on the expert opinion F. already available for the judicial assessment required here. In accordance with the narrowly limited question of evidence, the expert only commented on the melody. He has emphasized several times that the elements of the composition that he mentioned are only relevant for the assessment of the question “whether a melody is taken” is available (such as page 9 of the report). The Court of Appeal was therefore unable to conclude from the statements of the expert, who dealt solely with the question of the melody extraction and merely assumed the copyright protection of the composition “Dirlada”, but had not examined its own creative design and its basis. The plaintiff has rightly complained in the lower courts that no evidence has been collected on the relevant questions. However, plaintiff did not consider getting an expert opinion. So far, there is no judicial expert opinion available.
2nd
The reasoning with which the appeal judgment – regardless of the one under para. 1 discussed question of the influence of the processing method of the work – the protective capacity of the melody of the song “Dirlada” and the denial of essential similarities does not stand up to the revision challenges.
a)
The appellate court, referring to the expert opinion F., points out that for the most part, popular music does not offer a high degree of idiosyncrasy. It does not want to confront the listener with something unfamiliar, but wanted to offer them something familiar. That is why they are closely connected to the musical public domain, both melodically and harmonically. For this reason, the applicant cannot point out that the creative achievement of the composer G. was precisely to create a simple melody sequence that contained a strong inner strength. The applicant’s considerations that the defendant’s work had become a hit, and that various evergreens such as “Tea for Two” had a melody with only a few notes, are not enough to justify a claim of creative achievement. For this is a prerequisite that the aesthetic content of the work must have reached such a level that, according to the view prevailing in life of the those susceptible to art, one can speak of an “artistic” achievement. In the case of simple melodies consisting of a few notes, a creative performance alone cannot usually be justified with the tone sequence, especially since the tone sequence “b – c# – a” in question here is already the subject of countless melodies of the musical commons. If the expert F nevertheless assumed that the plaintiff’s melody could be protected, this was only in the applicant’s favor.
The appeal rightly complains that the Court of Appeal failed to recognize the principle of free assessment of evidence (Section 286 ZPO). The court of appeal has denied the claim of protection of the melody without considering the other aspects of the dispute. Simply listening to the recordings was not enough to make a decision. The assessment of the question of whether a melody can be recognized as a personal intellectual creation usually requires musical expertise – also in the field of pop music. The reasons for the judgment do not indicate whether the court of appeal had the necessary expertise. The contested judgment cannot be based on the expert opinion F., the explanations of which have largely been subscribed to by the court of appeal. At the beginning of the report, the expert (p. 2 above) presupposes the protective capacity of the plaintive melody, since the decision does not raise the question of providing evidence. However, contrary to the assumption of the appeals court, the expert opinion suggests that the melody can be protected. So on page 8 it says that the plaintive melody in solo as well as in the choir has a certain peculiarity in that in bar 1 the downward trend from c sharp to b does not simply continue to a, but the melody in 5/8 first returns to c#. Correspondingly and at the same rhythmic place, namely in the third quarter of the bar, the choir does not sing c # immediately after a – b, but a lead in the form of b – c #. This gives the plaintive melody an aesthetic effect, that reminds of foreign folklore, which in any case does not occur frequently in the folksong that we are familiar with. The Court of Appeal disregarded these statements by the judicial expert. They can also be agreed with the view expressed in the private report de la M. submitted by the applicant that even simple sequences of tones can have originality. The Court of Appeal did not fail to recognize this, but did not adequately appreciate it. It also did not refute the applicant’s arguments, which conceded that G. had created a simple melody sequence, but nevertheless attached a strong inner expressiveness to it.
b)
Regarding the question of whether the melodic correspondence was sufficient to justify the prima facie evidence of a removal, the Court of Appeal referred to the court’s opinion on this subject of evidence . The revision rightly criticizes the fact that the court of appeals deals with the statements of the expert de la M. on the question of a metric shift without expert assistance. De la M. carries out the shift differently than the expert F. and thus comes to a complete agreement. However, the complaint of the revision that the appellate court had to obtain an expert opinion in view of the plaintiff’s objections to the expert opinion F. and the private expert opinion submitted by her is unfounded. A procedural obligation to obtain an expert opinion exists only in exceptional cases (see BGH MDR 1953, 605). Here it would have been sufficient to give the expert, who clearly has the necessary expertise, the opportunity to make a supplementary expert opinion.
If significant similarities are found during the re-examination, the court of appeal will have to deal with the defendant’s objection that the defendant 3 was based on public domain Greek folk music.
IV.
In the new trial and decision, the Court of Appeals will have to consider whether it is more appropriate to choose an objective starting point. The necessary comparative assessment is usually only made possible by examining which objective characteristics determine the creative peculiarity of a work (see BGH GRUR 1980, 853, 854 – change of architect; also GRUR 1976, 261, 263 – painting wall). The definition of the protection area makes it easier to see the existing matches. The Court of Appeal will have to focus on these – and not on the differences. They form the basis for determining the distance between two workpieces (see BGH GRUR 1960, 251, 253 – Mecki-Igel II; 1961, 635,
When assessing the question of whether there is free use, according to the case law of the Senate, in the interest of sufficient copyright protection, it is fundamentally not necessary to apply a scale that is too generous; on the one hand, the author should not be deprived of the opportunity that is indispensable for him to take over suggestions from pre-existing foreign works, on the other hand, he should also not spare himself this way of creating his own work (see BGH GRUR 1965, 45, 47 – city map; 1971, 588, 589 – Disney Parody; 1978, 305, 306 – Snow Waltz). Which requirements are to be made depends on the design level of the work used as a template; because the more striking is the peculiarity of the work used, the less peculiarities will be incorporated into the work created afterwards (BGH GRÜR 1958, 500, 502 – Mecki-Igel). For this reason, conversely, too great demands cannot be made if the work used as a template has only a low self-creative content; a work of lesser peculiarity is more likely to merge into the reproduced work than a work of particular character (cf. BGH GRÜR 1958, 402, 404 – Lili Marleen).
V.
After the plaintiff’s revision, the contested judgment had to be set aside and the legal dispute had to be sent back to the court of appeal for a new hearing and decision, including the costs of the revision.