Anzilotti v. Hildenbeutel

Comment by Charles Cronin

In this dispute defendants, Ralf Hildenbeutel et al., who founded a once-popular German “trance music” act in the early 1990s, claimed plaintiffs Luca Anzilotti, et al., who established a German “Eurodance” group around the same time, had infringed the copyright of their electronic sound work “Superstring” in Anzilotti’s “Green Grass Grows,” a song with an electronic vibe similar to that of Hildenbeutel’s work. Using this allegation, Hildenbeutel initially thwarted Anzilotti’s efforts to obtain royalty payments from GEMA (German performing rights organization) associated with “Green Grass Grows.” Anzilotti then sued to establish his work did not infringe, and to release the royalties GEMA had withheld from him. The Munich Regional Court determined the contested musical expression was not eligible for copyright protection, and Hildenbeutel appealed this decision to the Higher Regional Court of Munich.

The appellate opinion offers an exhaustive and impressively informed musical analysis (common in German court judgments in music infringement cases) of both works, based on expert opinions provided by the parties as well as one commissioned by the court itself. The expression at issue is a five-note motif “la-ti-do-la-sol” (or, as the court puts it: “AHCAG” [“H” indicating to the note “B”]). In a sophisticated discussion of how musical sequences are structured and perceived, the court rightly dismantles the defendants’ arguments that the contested protectable musical expression is more extensive than this five-note motif. The judgement classifies this repeating five-note motif as mere “kleine Münze” (“small change”, i.e., “peanuts”) that does not attain the modest threshold of creativity that musical expression must meet to be protected.

Query whether the genres of these works, and the medium used to create them (i.e., mainly electronically produced sounds) bears on the “depth” of their protectable expression. Perhaps most of their content should be attributed to engineers who invented the synthesizers, and programmers who developed software, without whom these works could never have been made.

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Munich Higher State Court decision (German) (1999): PDF

Google-Translated rough English version of Court decision: PDF