BGH [Federal Court of Justice] Feb. 3, 1988, I ZR 142/86 (Germany)
Complaining Work |
Defending Work |
|
Bert Olden “Alle Liebe dieser Erde” “Un canto a galicia” |
Ralph Siegel “Ein bisschen Frieden” |
Comment by Leonie Schwannecke
“Ein bisschen Frieden” (A little peace) – the song that brought Germany its first win of the Eurovision Song Contest in 1982, as well as a little less peace in the legal world, namely a copyright case that made it all the way up to the Federal Court of Justice (BGH). The plaintiff alleged: the composer of “Ein bisschen Frieden” (the defendant) used roughly 2 bars of the previously written song “Alles Liebe dieser Erde”, published by the claimant, for the chorus of “Ein bisschen Frieden”.
As pointed out by the BGH, a feasible copyright music infringement claim has two prerequisites: (1) objectively, a piece of music that is by itself – i.e., not just in the context of the entire song – protected by copyright law must have been extracted from one work and used in another, and (2) subjectively, the defending composer must have known that work and used the protected extract consciously or unconsciously. Whether the subjective requirement is fulfilled can be based on prima facie evidence that can then be challenged by the defendant.
Thus, in a first step, it needs to be established whether the extract in question – i.e., the notes opening bar 2 of the chorus of the defendant’s song, which is allegedly extracted from the interlude of the claimant’s song – is protected by copyright. The BGH consistently recognizes that the threshold for a piece of music to be protected under the German Copyright Act cannot be put too high. At the same time, the court also restated that the level of protection varies with the degree of musical creativity and unusualness – the less idiosyncratic a piece of music, the lower its level of protection.
The use of an ascending third sequence, as in the extract in question, is commonly used so that not any such sequence can be protected. It is therefore questionable whether the sequence at issue here can actually be protected, or whether it is a musical commonplace that can be used by anyone (c.f. § 24 I Copyright Act). As one of the expert witnesses pointed out, the part of the melody that is similar in all three songs is so firmly anchored in the general consciousness that every listener is actually familiar with this element, and the use of an ascending third so simple, that every composer has it at his disposal and does not need to borrow it.
Nevertheless, the threshold to be met for a piece of music to be protected is fairly low, and the question of protection is not based solely on the melody but also on other musical elements, at least some of which are present in both “Alles Liebe dieser Erde” and “Un Canto de Galicia”. In principle, and despite its low creative value, the sequence in question should, therefore, be protected by copyright law.
However, because the use of an ascending third sequence is common and easily available to composers, and thus of low originality, this should be reflected in the level of protection granted and, in my opinion, lead one to deem its originality being rather minimal. Accordingly, assuming it is minimally original, the similarities between the two works need to be significant in order for the defendant to have violated copyright law. The BGH established in previous cases apart from the melody itself, the way it is developed, through rhythmic variation and other techniques used by the composer, is just as important. The expert witness in the case pointed out that the defendant used such musical techniques and design elements, such as holding the lead note and then developing the melody in a different way than in the plaintiff’s works, that lead to “Ein bisschen Frieden” being of a higher musical quality and creative originality than the earlier songs. When looking at the overall piece, this assessment is certainly accurate. After the first note of bar 2, the melody in “Ein bisschen Frieden” does take a different turn and thereby the composer brings it to a higher creative level than that of the other two pieces relevant to this case.
However, the question of whether a copyright was infringed is not decided by consideration of the overall piece, but by the sequence alone that is protected by copyright law. As the expert witness pointed out, that sequence is “firmly anchored in the general consciousness”. But arguably, this also means, that it may be easily associated with “Alles Liebe dieser Erde” and “Un Canto de Galicia”. According to § 24 II German Copyright Act, part of a melody being recognizably taken from another title – i.e. in a way, that that melody can still be associated with that other title – fulfills the objective prerequisite of a copyright infringement. It does seem likely, that the musically educated person would associate the beginning of the chorus in “Ein bisschen Frieden” with the interlude in “Alles Liebe dieser Erde” and “Un Canto de Galicia”. Thus, the first prerequisite, namely the finding of an objective extraction of a piece of music from another song, is fulfilled.
This leads to prima facie evidence that the defendant used the sequence in question at least unconsciously – and therefore leaves him with the burden to refute this evidence. Hence, the question remaining is whether the defendant is able to successfully challenge that evidence by establishing that the congruency was a mere coincidence – an accidental parallel creation. The BGH considered it to be unlikely that a congruency over nearly 2 bars was just accidental. In particular, it has not been contested that the defendant knew the claimant’s song when writing “Ein bisschen Frieden”. In the end, whether he (un)consciously used the claimant’s melody is a question of fact that the BGH did not decide. Instead, it referred the case back to the court of appeal for a different trial and decision. Whether a copyright infringement was in the end established remains unclear but seems unlikely.
In my opinion, this would be the right decision: It should not be underestimated that using an upward third sequence is not uncommon and that furthermore the level of protection the claimant was granted is relatively low. The logical consequence is that the prima facie evidence is weak and the threshold for the defendant to challenge it and successfully argue for an accidental double creation accordingly low. A song is not composed bar by bar, sequence by sequence, but as an integral whole. Although the overall creativity and distinctiveness may not be relevant to the objective assessment of copyright infringement, it should once again become relevant when assessing the composer’s state of mind and support the defendant’s argument that the congruency was accidental – and the use of the upward third sequence simply suited the piece as a whole.
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German Federal Court of Justice decision (German) (1988): PDF
Google-Translated rough English version of Court decision:
- Order:
On the revision of the plaintiff, the judgment of the 5th Civil Senate of the Chamber Court of 9 May 1986 is set aside.
The matter is referred back to the appellate court for a different negotiation and decision – also about the costs of the revision.
- Fact:
The applicant is a music publisher. The defendant is the composer and publisher of the song “Ein bisschen Frieden” [“A Little Peace”] with which the pop singer Nicole won the grand prize of the Eurovision in May 1982. The parties dispute whether the defendant used the song “All the love of the earth”, in which the applicant claimed the exploitation rights, in an inadmissible manner in this composition.
The composer of the song “Alle Liebe dieser Erde” [“All the love of this earth”] is Bert Olden (real name Otto D.), lyricist is Christian Heilburg (real name Gregor R.); the hit has been sung by Julio Iglesias since 1973. On the basis of a contract with Bert Olden dated September 13, 1973, the plaintiff is the publisher of the song. By contract of November 2, 1973, she agreed with the Spanish publisher Notas Magicas SA a “community copyright” on this title. Magicas SA is also the publisher of the title “Un Canto de Galicia”, composed and texted and sung by Julio Iglesias in 1971 (German version by Harald H. Werner / Bert Olden “When a ship goes by”). The hits “Un Canto de Galicia” and “All love on earth” are similar in certain tone sequences.
These hits and the hit “A little peace” composed by the defendant have the following score, insofar as correspondence is asserted:
The claimant claims the defendant to refrain from doing so, to provide information, to invoice and to determine the obligation to pay compensation.
She argued that the defendant committed copyright infringement because he used the interludes from the song “All the love of this earth” (opening to bar 2 first note) in the chorus of “A little peace” (opening to bar 2 first) Note). The interlude of this song is a copyrighted piece of music. Since the defendant knew the song – which is not in dispute – he borrowed the relevant sequence of notes at least unconsciously. An adaptation of “Un Canto de Galicia” can be seen in the song “All the love of this earth”, but this is permissible because both Julio Iglesias and Notas Magicas SA agreed.
The defendant opposed this. He denied the applicant’s active legitimation. The text author of “All love on earth” did not agree to the complaint; Furthermore, the plaintiff can only sue for the agreed joint copyright with Notas Magicas SA. In addition, the other parties would not have agreed to use the sequence of “Un Canto de Galicia”. The defendant also contested a copyright infringement. The tone sequence in question in “All the love of this earth” is not capable of copyright protection; it has no originality, rather it belongs to the previously known musical common good. In addition, he could not be accused of consciously or unconsciously borrowing. Against that speak that the respective melodies and arrangements are far too different. He – the defendant – had not remembered “All the love of this earth” when he composed “A little peace”. The district court upheld the lawsuit after obtaining an expert opinion. The appeal resulted in the action being dismissed after the Chamber Court obtained another expert opinion. The plaintiff’s revision leads to the cancellation and remittance. led to the dismissal of the complaint. The plaintiff’s revision leads to the cancellation and remittance. led to the dismissal of the complaint. The plaintiff’s revision leads to the cancellation and remittance.
Reasons for decision
I.
1.
The Court of Appeal affirmed the plaintiff’s active legitimation and stated: It could remain open regarding the question of active legitimation whether the Interlude from the song “All the love of this earth” is an independent creation or a dependent editing of the title “Un Canto de Galicia” or – which is the closest – is about a broad takeover of this title without any creative features. In any case, the claimant can sue alone and also demand performance. Regarding the title of “The Whole Earth ‘gives her exclusive right under the contract with the Notas Magicas SA of 2 11 1973. In the event of a recovery of the title” Un Canto de Galicia “in the form of editing could the applicant to § 3 Copyright Act take independent protection; in the event of an exploitation in the form of an almost identical takeover, it must be assumed that the necessary consent from Notas Magicas SA and Julio Iglesias had been obtained.
2.
The latter is successfully questioned by the defendant in his revision statement. The defendant believes that even if it is assumed that Julio Iglesias as the composer of “Un Canto de Galicia” and Notas Magicas SA as the publisher had agreed to the song’s exploitation by the composer of “All the love of the earth”, none of this resulted Authorization to exercise rights related to the song “Un Canto de Galicia”.
a)
On the basis of the findings made so far by the appellate court, the applicant ‘s active legitimacy cannot be affirmed if – based on the assumption by the appellate court – the tone sequence of the interlude from the song “All the love of this earth” is (almost) identical from the Song “Un Canto de Galicia” has been adopted. In this case, the applicant must also have owned the exclusive rights to the title “Un Canto de Galicia”. However, this cannot be sufficiently inferred from the findings of the BerG.
From the contract between the applicant and Notas Magicas SA dated November 2, 1973 on a “Community Copyright” for the title “All Love on Earth”, a conclusive consent of Notas Magicas SA to the exploitation of “Un Canto de Galicia” can be derived from the composition “All the love of this earth”, but not an exclusive right to the title “Un Canto de Galicia” itself. Contrary to the assumption of the court of appeal, such a right does not result from the sub-publishing contract of the cl. with the notas Magicas SA of October 16, 1972 on the title “Un Canto de Galicia” since this contract expired on October 15, 1980. Evidence of continued consent – accepted by the Court of Appeals – that should extend to the assertion of the exclusive rights to this title are not evident. The active legitimacy cannot be based on the letter from the Notas Magicas of May 3, 1984, which the appellate court continued, since this letter only refers to the title “All the love of the earth”.
The further assumption by the Court of Appeal that Julio Iglesias too had at least impliedly given the plaintiff all the necessary rights to the title “Un Canto de Galicia”, including defense rights as exclusive rights, is also not supported by the findings made by the BerG. The fact that Julio Iglesias sang both the song “Un Canto de Galicia” he composed and the song “All the love of this earth” can be approved of the use of “Un Canto de Galicia” for the title “All Love this earth “, but not the granting of an exclusive right to the title” Un Canto de Galicia “. This also applies to the further consideration of the BerG that Julio Iglesias never acted against the applicant or against Bert Olden.
b)
The active legitimation confirmed by the court of appeal cannot therefore be maintained on the grounds given by the court of appeal. Since the appellate judgment on the plaintiff’s revision needs to be annulled anyway (see below under II), the court of appeal will also have to investigate the question of active legitimation in its new trial and decision. The plaintiff will have the opportunity to make further statements in the reopened appeal. If the BerG does not determine the granting of exclusive rights to the title “Un Canto de Galicia”, the BerG will review the previously unanswered question of the dependency of the song “All Love on Earth” from “Un Canto de Galicia” to have.
II.
The justification with which the BerG denied the existence of copyright claims does not stand up to the revision law review.
1.
The Court of Appeals – based on the opinion of the expert Prof. Dr. R. – explained that the tone sequence in question from “All the love of this earth” or from “Un Canto de Galicia” is a copyrighted work as a separate melody. However, it cannot be established that the defendant consciously or unconsciously adopted this tone sequence when he composed the song “A Little Peace”. Rather, it can be assumed that the similarities between “A Little Peace” and the other two titles are based on an accidental double creation – not covered by copyright. Although the plaintiff should be conceded that a presumption or at least a first appearance could suggest an at least unconscious takeover, if there are certain correspondences for no explainable reason. Such a presumption is, however, refuted in the present case, and a first appearance must be regarded as weakened, since the similarities can also be explained in other ways than by a conscious or unconscious takeover. It can be assumed that the defendant knew the songs “Un Canto de Galicia” and “All the love on earth”. Nevertheless, a random double creation can be assumed here. This follows from the convincing statements by the expert Prof. Dr. R. He compared the melodies of the three tracks from the beginning to bar 8b and came to the conclusion that the melodies of “Un Canto de Galicia” and “All Love of the Earth” can be largely described as the same ; the melody of “A little bit of peace”, on the other hand, can be classified as superior in terms of compositional technique due to a completely different continuation and so far away from “All love on earth” that a suggestion can be excluded. The expert further elaborated that the aspects of harmony and rhythm give nothing for the distinction, but the deviations in the tension, in the arrangement, in the overall course and in the specific character are considerable. Of the three melodies, “A little peace” alone shows a certain degree of creative networking, which may well be the result of hard work and is not dependent on borrowing; the “head motif” essential in all three melodies – the ascending third with the subsequent first bar, which then goes up to the leading tone in the second bar – is so firmly anchored in the general consciousness that every listener is actually familiar with this element; it was so simple, so elementary and so simple that every composer had it ready and did not need to borrow it.
2.
The revision’s attacks directed against this assessment are successful. They lead to cancellation and referral back.
The assumption of copyright infringement according to §§ 97, 24 Abs. 2 UrhG presupposes the determination that (objectively) a copyrighted melody has been removed and that (subjectively) the composer of the new melody knew the older melody and knew it consciously or unconsciously at his Has resorted to it (see BGH GRUR 1971, 266, 268 Magdalenenarie). The appellate court also correctly assumed this in the approach; however, the statements he has made so far are not sufficient to finally assess the question of inadmissible melody extraction.
a)
The Court of Appeals has assumed that the Interlude from the first Iglesias song “Un Canto de Galicia” from 1971 and also the Interlude from the song “All the love of this earth” from 1973 have the creative peculiarity required in the sense of the copyright protection of melodies Section 2 (2) UrhG. The revision does not object to this assumption as being favorable to you, but is rightly questioned by the defendant in its revision statement.
From a legal point of view, the Court of Appeals rightly assumed that the demands on the creative peculiarity of musical works should not be too high. The so-called small coin has been recognized for a long time in the field of musical creation. It captures simple but just protected intellectual creations. It is therefore sufficient that the formative activity of the composer – as with the hit music regularly – has only a relatively low degree of peculiarity, without the artistic value being important (BGH GRUR 1981, 257, 268 Dirlada). As far as – as here – not about the copyright protection for the whole song, but about the melody contained in the song, the individual aesthetic content in the melody itself,
The court of appeal has not made any factual findings of its own, but merely referred to the fact that the expert Prof. Dr. As a rule, the tone sequence in question had been given a self-creative character, albeit a relatively small one. This reference to the expert opinion is not sufficient in the present case. This is because the expert opinion does not provide any justification that can be verified under revision law. No. 1 of the summary of the second report states that the sequence of tones in the song “All the love of this earth” – interlude opening to bar 2 first note – has a relatively low creative character, because it is based on the little changed adoption of a common one Habanera rhythm rest and refer to common “patterns” in the melodic area. However, this summary statement is not borne out by the previous expert reports. Rather, on page 8 of the second report, the passage from the beginning to the first note in bar 2, which is identical between “All the love of this earth” and “A little peace”, is a so-called pattern (basic pattern, model), which must remain generally accessible and therefore cannot be protected by copyright alone; However, the way in which the composer networks the individual patterns could be self-creative; seen in this way, of the three melodies to be examined, “A little peace” alone shows a certain degree of self-creative networking. This contradiction is obviously based on that the expert subsequently changed the summary of his first – later withdrawn – opinion in which he had taken the view that the tone sequence in question was not of an own creative character, but not the corresponding content. However, the expert also said at his oral hearing that the essential “head motif” in all three melodies (the ascending third with the subsequent first bar, which then goes up to the leading tone in the second bar) was so firmly anchored in the general consciousness that actually everyone Listener to this element; it was so simple, so elementary and so simple that every composer had it ready; for a composition teacher and a composer it was a commonplace,
If the court of appeal merely wanted to assume copyright protection, this would raise concerns in the event of a dispute.
Such a procedure would only be harmless if an inadmissible melody extraction were to be denied in the present case regardless of the question as to what the copyrightable elements of the plaintiff’s melody consist of. However, as the following explanations under b) and c) show, this is not the case.
b)
The assessment of the question of replication or removal basically requires an examination of the objective characteristics by which the creative peculiarity of the original is determined. For the question of removal, only the matches that are within the scope of protection of the older melodies are of copyright significance. The comparison of the coincidences in the creative field makes it possible to draw the line between the acts of copyright-relevant use (in the form of duplication or editing) and the permissible free use (BGH in GRUR 1981, 267, 269 Dirlada). These correspondences must be determined in each individual case and checked to see whether, based on the rules of prima As a rule, correspondences suggest that the author of the younger work used the older one (BGH GRUR 1971, 266, 268 Magdalenenarie; 1981, 267, 269 – Dirlada).
The court of appeal has not made any further statements on the question of whether the similarities in the dispute in the – provided self-creative melodic range are sufficient to justify the prima facie evidence for a removal. It merely stated in general that the applicant should be conceded that a presumption or, in any event, a first appearance may speak for an at least unconscious takeover if, in two works, certain characteristics matched for no explainable reason, which, due to their nature or in this combination, hardly differ from different people could be congruent if they had worked independently; In the present case, the tone sequences in question would – at least externally recognizable to the layperson – would at least have certain similarities.
The court of appeal ultimately assumes that there is prima facie evidence of at least an unconscious borrowing, without specifically showing what the correspondences actually consist of. Such a procedure would only be harmless if the prima facie evidence could be invalidated regardless of the type and extent of existing matches. This cannot be assumed here.
c)
The reasoning with which the Court of Appeal regards the prima facie evidence as invalid has no bearing. It is rightly assumed that the prima facie evidence is to be regarded as fundamentally empty if, according to the circumstances, a different course of events is obvious, according to which the correspondences can also be explained in other ways than by the creator using the new melody to the older one ( see BGH GRUR 1971, 266, 269 Magdalene aria). However, the court of appeal has not determined sufficient circumstances for a different course of events.
aa)
For the assumption of the court of appeal, the similarities between “A little bit of peace” and the other titles were based only on an accidental double creation – not covered by copyright – there is insufficient evidence to be found. When assessing the question of whether the correspondence between two works in individual cases is based on coincidence or on the fact that the older work served as the model for the author of the new work, it must be assumed that, given the diversity of individual creative possibilities in the artistic field Extensive agreement of works based on independent creation seems almost impossible according to human experience ( BGHZ 50, 340, 350 f. – Ruffle hood 1). This principle of experience can also be assumed for the area of musical creation (BGH GRUR 1971, 266, 268 Magdalen aria). The circumstance cited by the BerG that the composer has limits given the limited number of tones (Fromm / Nordemann / Vinck, UrhG, 6th ed. 1986, appendix to § 24 paragraph 11) does not change this. As a rule, this does not justify easing the requirements to invalidate the prima facie evidence. In the musical field too, when using the existing teaching and design tools (such as melody, harmonics, rhythm, metrics, tempo, phrasing, articulation, ornamentation, cadence, periodics, arrangement), there is further scope for individual expressiveness, assuming a double creation also appears here as an exception.
bb)
Given this legal starting point, there must be weighty reasons for the assumption of an accidental double creation, especially since the court of appeal itself assumes that the defendant, as a specialist in the field of pop music, will play the songs “Un Canto de Galicia” and “All Love on Earth” “heard in the first years after its creation. The fact that the two songs were written around ten years before the title “A Little Peace” and therefore also in the defendant’s memory – was hardly up to date against a loan. A melody extraction relevant to copyright would also exist if the defendant – in the belief that he created his own melody – had unconsciously resorted to the older melody that was remembered.
cc)
For the rest, the Court of Appeal essentially justified the existence of an accidental double creation with the fact that there were considerable deviations between the melodies in question. This finding is not borne out by the findings of the Court of Appeal. The appeal court’s approach, on the one hand, the existence of a prima facie evidence for an unconscious borrowing and thus also essential correspondences, without elaborating on it, to assume, but on the other hand, the prima facie evidence again by the determination of essential deviations, which would suggest an accidental double creation, as eliminated, is not free from legal concerns. If there is a wide-ranging correspondence between two tone sequences necessary for the acceptance of a prima facie evidence, it is difficult to imagine from a legal point of view that at the same time there are also serious deviations from the conformities, which are to be assessed as more important. One will usually rule out the other. The Court of Appeal should first have determined the similarities in the creative field and checked them to see if they were so heavy that they justified the existence of prima facie evidence. Only after such an examination can the question of debilitation be assessed in the present case. The Court of Appeal should first have determined the similarities in the creative field and checked them to see if they were so heavy that they justified the existence of prima facie evidence. Only after such an examination can the question of debilitation be assessed in the present case. The Court of Appeal should first have determined the similarities in the creative field and checked them to see if they were so heavy that they justified the existence of prima facie evidence. Only after such an examination can the question of debilitation be assessed in the present case.
The deviations cited by the Court of Appeal are not consistently noteworthy. The deviations in the “overall course and specific character” relate to the entire song and not to the contested tone sequences; they are therefore insignificant for the comparison of melodies. There are also doubts about the expert Prof. Dr. R. emphasized deviations in the range of tension on which the appeal court continues to rely. The melody of “A little bit of peace” is due to a completely different continuation (from the leading note in bar 2) to be classified as higher in terms of composition and so far removed from “All love on earth” that a suggestion can be excluded; while “All Love on Earth” is followed by a somewhat cheap sequence, turning a melody (in third and sixth intervals) does not apply to the style and culture of the Habanera. However, this consideration does not exclude that the Habanera rhythm is combined with other design elements that may be foreign to the Habanera culture.
dd)
On the concerns raised by the revision, the results of the expert Prof. Dr. R. to take over, it does not matter in the current state of affairs and disputes. This applies in particular to the objection to the revision, the expert did not adhere to the traditional methodology and did not follow the conventional structural analysis based on melody, harmony, rhythm, tension, arrangement and the like. Ä. limited, but carried out a socio-cultural analysis developed by him, taking into account a psychological dimension, and moreover himself admitted that his method was not yet secured, but nevertheless gave it priority over conventional structural analysis.
3.
The matter needs after all, if the applicant’s active legitimacy can be determined (cf. above under I 2.) also a further criminal investigation. The court of appeal will expediently first have to examine whether the tune on which the plaintiff bases its action has the self-created elements it claims to have and can therefore be used to protect the tune. If this is in the affirmative, the Court of Appeals will have to investigate further whether and, if so, which congruent melodies exist in the creative field. In doing so, the court of appeal will also have to take into account the design level of the plaintiff’s melody, since in the case of only a slight peculiarity – which the expert assumes, there is only a narrow scope of protection (cf.GRUR 1981, 267, 269 Dirlada). If significant similarities in the creative field can be determined, these could justify the prima facie evidence for a removal in accordance with the above explanations under II 2 b. The court of appeal will have to take into account the dependency between the scope of the correspondence and the prima facie evidence. The fewer matches there are, the weaker the prima facie evidence will be or will be completely eliminated; Conversely, the more matches, the stronger the prima facie evidence.
III.
The appeal judgment had to be overturned and the case remanded to the appeals court for a different trial and decision.