BGH [Federal Court of Justice] Sept. 26, 1980, I ZR 17/78 (Germany)
“Loop Di Love”
Comment (…we’re still cogitating!)
German Federal Court of Justice decision (German) (1980): PDF
Google-Translated rough English version of Court decision:
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.
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. The defendant composed the music for three. Defendant 2 has worked on piano for the title on behalf of Defendant 1.
Both pieces of music are from one – more like a chant. – each one-bar alternating song 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 – h – cis”. In both pieces, it is constructed according to a pattern that is particularly common with hits. The first two bars contain the phrase 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 melody continuation with renewed harmony change, while bars 13 to 16 essentially correspond to bars 1 to 4 again. The harmony 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 a dependent processing. The overall impression is essentially shaped by the shape and the way of processing, which largely coincided with both pieces of music. In this respect, the applicant relies on the private report submitted by Professor de la M.
With the lawsuit, the plaintiff requests information and accounts on the profit generated by the exploitation of the title “Loop di Love” and states that the defendants must also surrender any future profit to them.
The defendants denied that the defendant had known the song “Dirlada” at 3 and used it as the basis for his composition. However, they concede that he linked 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. After all, the similarity between the two pieces of music is also low. The few matches are irrelevant.
The regional court has obtained an opinion on the question of whether the defendant has taken 3 essential parts of his melody from the song “Dirlada”. The expert lawyer F. answered no to the 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 affirm a removal. In any case, the protectability of the melody is questionable because of the simplicity of the subject and the prior use submitted by the defendant. “Dirlada” does not contain any other protectable elements that the de la M. report deals with. The formal design, the harmony, and the alternating song between solo and choir belong to the common good.
The Higher Regional Court rejected the applicant’s appeal. This is countered by her revision, which she uses to pursue her complaint. The defendants request to reject the revision.
• Reasons for decision
The Court of Appeal considers that the plaintiff’s rights to use have not been infringed. It denies both dependent processing (Section 23 UrhG) and a melody (Section 24 (2) UrhG) for subjective reasons and states: The complaint can only be successful if the Defendant 3 in his composition writes the song ” Dirlada “and have 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. In addition, according to the parties, it must be assumed that the record entitled “Dirlada” was not on the market in the Federal Republic at the time. Even according to the rules of prima facie evidence, it cannot be concluded that the defendant used 3 “Dirlada” – consciously or unconsciously. This would require extensive agreement. However, these could not be determined when comparing 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 3 essential parts of his melody from the song “Dirlada”. In this context, it denies the protective capacity of the plaintive melody – assumed by the expert. 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.
However, the factual finding that the plaintiff had not proven the defendant’s knowledge of 3 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 audition by “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 3 knew the record.
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 to 3 as the author of the younger work used the older 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 processing (§ 23 UrhG) of the song “Dirlada” as a whole as well as a melody extraction (§ 24 Abs. 2 UrhG).
The appellate court affirmed the protection of the song “Dirlada” in its entirety, but denied a dependent processing.
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 in the public domain. 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, on the other hand, is heavy and accentuated, while in the choir the beginning and end had a quarter note, so that the beginning and the end be heavy.
These statements are not without legal concerns.
The Court of Appeal correctly applies 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 must not be too high. It is sufficient that the formative activity of the composer – as with the hit music regularly – 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 coin, ie simple, but just protected intellectual creations. 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 coin, still enjoy protection (BT-Drucks. IV / 270 p. 38). In principle, the Court of Appeal did not fail to recognize that purely manual 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 processing 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 protective performance was seen 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 processed and that the creative idiosyncrasy of a work is also determined by the individual aesthetic overall impression expressed in this design. The formative performance of a musical performance becomes protective, if it goes beyond the manual application of 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 appears. 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 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 peculiarity. The assessment is based on the opinion of the public, who are reasonably familiar with musical questions and open to them.
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 agreements. The appeal judgment could not stand after that. The court of appeal will not be able to rely on the expert opinion F. already available for the judicial assessment still 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 irrelevant 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 ability of the composition “Dirlada”, but had not examined its own creative design and its basis, that the defendant ‘s composition by which does not depend on the applicant. The plaintiff has rightly complained in the lower courts that no evidence has been collected on the relevant questions. However, she does not consider getting a top opinion. So far, there is no judicial expert opinion available.
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 ability of the melody of the song “Dirlada” and beyond that also denies essential similarities does not stand up to the revision attacks.
The appellate court, referring to the expert opinion F., points out that for the most part, Schlager was not of a high degree of idiosyncrasy. They did 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 common good, both melodically and harmoniously. For this reason, the applicant cannot point out that the self-creative achievement of the composer G. was precisely to have created a simple melody sequence that contained a strong inner strength. The applicant’s considerations that the defendant’s hit 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 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 circles susceptible to art and somewhat familiar with art view, 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 “h – cis – 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 melody’s ability to protect without exhausting the content of the dispute. Simply listening to the record 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 taken over by the court of appeal. At the beginning of the report, the expert (p. 2 above) it is clear that it presupposes the protective ability of the plaintive melody, since the decision to provide evidence does not contain any relevant question. 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 h does not simply continue to a, but the melody in 5/8 first to cis be returned. Correspondingly and at the same rhythmic place, namely in the third quarter of the bar, the choir does not sing c # immediately after a – h, but a lead in the form of h – 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.
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 without any reason. 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 a top 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.
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 faded 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).
After the plaintiff’s revision, the contested judgment had to be set aside and the legal dispute had to be rejected to the court of appeal for a new hearing and decision, including the costs of the revision.