BGH [Federal Court of Justice] Jan. 24, 1991, I ZR 72/89 (Germany)
Related case: Tony McKay v. Boney M. (Germany 1991).
“Brown Girl in the Ring”
Comment (…we’re still cogitating!)
Opinion [The English version is roughly translated by Google.]
German Federal Court of Justice decision (German) (1991): PDF
The plaintiff is a musician, composer and arranger. In 1975 he created the musical title “Brown Girl”, which was released on the long-playing record “Caribbean Rock” with the group “Malcolm’s Locks”. 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 edited the plaintiff’s music in a dependent manner.
The plaintiff claims the defendant for copyright infringement by means of a step-by-step lawsuit for accounting and profit distribution.
He argued that his music title was a creative adaptation of the Caribbean folk song “There’s a Brown Girl in the Ring”. He got to know the song around 1974 through the Caribbean musician Malcolm Magaron. The latter played the music on the guitar for him and wrote down the text version he was familiar with. He – the plaintiff – took the text literally for processing. He got basic material for the musical version and then developed his own version. The defendant had taken over the essential elements of his – the plaintiff’s – processing and only converted them into a specific disco sound.
The defendant opposed this. He conceded that the plaintiff’s processing of the arrangement should be regarded as the plaintiff’s personal intellectual creation. However, he denied having edited the plaintiff’s music in a dependent manner. His version shows significant deviations in the creative field.
After obtaining an expert opinion of the lawsuit, the district court granted the application for accounting by partial judgment. The Higher Regional Court rejected the appeal on the condition that the accounts should cover the proceeds accruing to the defendant from the music portion of his title (OLG Hamburg ZUM 1989, 526).
With the revision, the defendant continues to pursue his motion to dismiss. The applicant claims that the appeal should be rejected.
Reasons for decision
The appellate court affirmed the plaintiff’s claims under Section 97 (1) UrhG because the defendant had violated the plaintiff’s copyright. It stated: The processing of the folk song “Brown Girl” by the plaintiff constitutes a personal intellectual creation within the meaning of § 3 sentence 1 UrhG. There is controversy about which creative elements the plaintiff’s processing shows in detail. According to the convincing opinion of the judicial expert, the defendant’s version coincides with that of the plaintiff in the creative field in five points: the structure of the first round, the melody, the tempo, in the transition from solo singing to the more instrumental background involved and especially in the Mariacchi effect. These coincidences can no longer be explained by chance. The defendant had not invalidated the prima facie evidence for a takeover based on the scope of the correspondence.
This assessment stands up to the revision law review.
The appellate court affirmed the plaintiff’s claim against the defendant to accounting in accordance with section 97 (1) UrhG in conjunction with section 3 sentence 1 and section 23 sentence 1 UrhG.
It has assumed without legal error that the processing of the folk song “Brown Girl” by the plaintiff constitutes the personal intellectual creation required for the approval of copyright protection under the terms of section 3 sentence 1 of the Copyright Act.
From a legal point of view, it is correct to assume that musical works should not have too high demands on the creative peculiarity. The so-called small coin has been recognized for a long time in the field of musical creation, which records simple but just protected intellectual achievements. 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, judgment of 3.2.1988 – I ZR 142/86 , GRUR 1988, 812, 814 – A Little Peace). This applies both to originally created works and to arrangements. The protection requirements are the same (see BGH, judgment of 3.11.
The Court of Appeal initially did not make any statements of its own, but merely stated that the expert peculiarity of the creative peculiarity of the plaintiff’s processing should be affirmed. In this connection, the court of appeals considered further statements to be dispensable, because the defendant also assumes that the processing can be protected and only doubts whether this result can be based on all parameters considered by the expert.
The appeal contests that it is irrelevant whether the defendant has questioned the ability to protect or not; anyway, he only accepted it in connection with the private report F. with regard to the arrangement. It is correct that the question of the ability of the concrete work to protect copyright – unlike the individual actual requirements – cannot be raised as such by the parties. In this respect, it is a question of the application of the law that is not subject to party disposition. Nevertheless, the approach of the Court of Appeal is not objectionable because the necessary judicial findings have been made in a different context, namely on the question of whether there are similarities in the creative field (BU 10ff.).
The revision does not consider this to be sufficient and complains that the Court of Appeals has not made any determinations on the question whether the plaintiff’s processing also contains self-created components with which there is no agreement. The complaint does not apply in the event of a dispute. However, the assessment of the question of replication first requires an examination of the objective characteristics that determine the creative idiosyncrasy of the work used as a template (BGH GRUR 1988, 812, 814 – A bit of peace). As a rule, all self-created elements must be included. In principle, it can be assumed that there are similarities in the creative field (see BGH, ruling of 26.9.1980 – I ZR 17/78, GRUR 1981, 267, 269 – Dirlada; BGH, ruling of 10.12.1987 – I ZR 198/85, GRUR 1988, 533, 535 – preliminary draft II). However, the overall impression is decisive – as the Court of Appeals also correctly assumed (BU 14). Especially in cases of the present type, in which it is a matter of determining the limits of a free processing of the processing of a public domain work and in which the scope of the first processing by the adoption of public domain elements is already considerably narrowed, a comprehensive assessment of all of this comes about Design features. Contrary to what the revision thinks, it is not lacking in the event of a dispute. For when examining the question of what similarities the opposing arrangements of the parties have, the Court of Appeals also highlighted the essential self-creative elements that characterize the applicant’s processing record. Based on the expert opinion, it has come to the conclusion that there are six points of agreement between the two arrangements, five of which are in the creative area of the plaintiff’s version (see below under II. 2.). These creative elements of the plaintiff version are largely identical to those in which the expert affirmed the plaintiff’s personal intellectual creation from the point of view of the musical form, the melody, the rhythm, the tempo, the harmony, the text and the arrangement ( see p. 10ff. of the first report, which the expert essentially maintained in his supplementary report and at his oral hearing before the regional court). From this examination of the expert, which extends to the question of creative processing as a whole – i.e. regardless of any existing correspondence with the defendant version – the appellate judgment only includes the text, which does not play any role in this procedure, and the area of rhythm , in which no significant similarities were found, remained undiscussed. However, it can be seen from the overall context of the statements made by the Court of Appeal that it also included the latter point of view in its considerations. Because it expressly endorses the expert opinion, insofar as it comes to the conclusion that “the processing of the plaintiff in its entirety reveals creative idiosyncrasies” and “that the overall impression is based on the interaction of various elements” (BU 14).
The further objection of the revision that the judicial expert, whom the court of appeals had followed, failed to take the necessary comparative look at the plaintiff’s version with the previously known traditional versions (Jekyll, Beckwith, Robertson and Exuma). The statements of the expert reproduced by the revision at his hearing at the hearing on May 25, 1987 before the regional court, “I only dealt with the comparison H./F.” (GA III 636) and “Mit den Traditional- I have not compared versions of the three versions mentioned “(GA III 641 above) refer to individual points and do not fully reproduce the hearing result. The expert explained later when asked further questions (GA III 641 below): “I compared the three traditional versions with each other and with the three printed versions (F., H., Exuma)”. It also emerges from the written expert opinion of February 22, 1985 that the expert – in accordance with the question of evidence on 1 – compared the applicant’s version and the Exuma version completely with one another (expert opinion p. 10ff.). In addition, the expert compared all traditional versions in a grade comparison (see expert opinion, pp. 5-8) and clearly incorporated them into his subsequent analysis. Otherwise, the revision has not shown which public domain elements were wrongly regarded by the expert as self-created. Insofar as the revision relates to the private report F. presented by the defendant, it must be taken into account that the judicial expert has dealt with this in his supplementary report and also during his hearing on the corresponding provision of the traditional versions.
Also the further acceptance of the court of appeal that the defendant violated the plaintiff’s existing copyright of the plaintiff by processing the plaintiff’s processing in a manner that was not free according to § 23 sentence 1 UrhG, also stands up to the legal review.
In order to draw the line between the copyright-related acts of use (in the form of duplication or editing) and the use of a work created in free use permitted under Section 24 (1) of the Copyright Act, the decisive factor is the overrules in the creative field of the plaintiff. Version. These coincidences must be determined specifically in each individual case and checked to see whether, according to the rules of prima facie evidence, they allow a conclusion that the composer of the younger work uses the older work, i.e. knew and used it consciously or unconsciously in his work, whereby extensive similarities usually suggest the assumption that the author of the younger work used the older one (BGH GRUR 1988, 812, 814 – A little peace m.w.N.).
Which requirements have to be made in individual cases to determine the distance between two plants depends on the design height of the plant used as a template. The more striking the peculiarity of the work used, the less its peculiarities will fade in the work created afterwards. Conversely, it is true that a work of low idiosyncrasy is more likely to merge with the reproduced work than a work of particular character (cf. BGH GRUR 1981, 267, 269 – Dirlada mwN).
The Court of Appeal adhered to these principles.
The appeal objected without success, the appeal judgment lacks the necessary statements regarding the scope of protection of the plaintiff’s processing. She believes that the court of appeal has limited itself to the question of the ability to protect. In doing so, she overlooks the fact that the scope of protection of a work is determined by the self-creative elements that form the basis for protection and their degree of peculiarity.
According to the expert, the appellate court found its own traits in five areas. Most of the explanations are in the area of the judge. The revision has not identified a revisable legal error.
The appellate court initially saw a certain – albeit low – degree of peculiarity in the structure of the first round, which was not specified. In this respect, it was based on the statements of the expert, who stated that the independence of the processing is very clear from the point of view of the overall musical form. Instead of a prelude and a postlude, both of which are used for rhythmic purposes, the plaintiff selected original tapes from speaking Jamaicans and fades in and out with this acoustic event. The first round included four complete main parts. He thus dispenses with a B-section and an interlude of four bars, as the Exuma version characterizes.
The appellate court dealt adequately with the defendant’s objection that this approach was very formalistic and pointed out that structural questions are essentially formal in nature. Contrary to what the revision thinks, the Court of Appeals also saw a certain individuality, especially in the first round and not only in the overall version (BU 11 above).
Regarding the course of the melody, the Court of Appeal stated that, in dealing with the defendant’s objections and the private report F., the expert confirmed in his supplementary report that, given the folkloric presentation, the creative aspect was not particularly pronounced. Nevertheless, he had explicitly and with convincing reasons adhered to the protectability of the plaintiff’s melody version and confirmed this after intensive discussion in the appointment before the district court.
The appeal, on the other hand, argues that the Court of Appeal overlooked the fact that the expert did not take the punctuation he considered essential from the record in dispute at issue, but from the printing of the sheet music. However, it does not indicate which conclusions should be drawn from this and, moreover, does not take into account the fact that the expert commented further on the question of puncturing in the course of his hearing. Insofar as the revision wants to deny the individual’s individuality of the melody because the version is largely identical to the Exuma version, it does not take sufficient account of the fact that the expert’s first report (pp. 10f.) Does show differences – albeit minor – shows. In view of the low requirements for the ability to protect music and the fact that when editing a folk song that has been handed down in many versions there is little scope for individual designs in the melodic area, even slight deviations may be relevant. The appellate court’s assessment is therefore not objectionable for legal reasons.
With regard to the pace, the court of appeal followed the expert’s opinion that this was a parameter that made the plaintiff’s processing appear independent. The plaintiff had chosen a pace with MM = quarter 96, which, for example, was significantly slower than that of the Exuma version, but faster than that of the traditional Jekyll version for the original pace, which the expert had assumed with MM = quarter 88. This information precludes the acceptance of the revision that the plaintiff accepted the specification of the tradition.
Finally, the appellate court agreed with the expert in the arrangement that there were two aspects of self-creative traits, first in the transition from solo singing to the instrumental background more involved and then in the Mariacchi effect, i.e. in the intensification of the sound by the trumpet-determined Mariacchi -Sound. In this respect, the statements made by the Court of Appeal do not indicate a legal error. The revision is admitted that the transition from solo singing to more prominent instrumentation is a common stylistic device. However, this does not preclude the way in which this stylistic device is used concretely containing something that is self-created. The revision further points out that the expert had made restrictions on the instrumentation in his supplementary report (p. 12) and at the oral hearing (GA III 638). As far as can be seen, these relate to the defendant’s version and not that of the plaintiff.
To summarize, it can be assumed that the individual elements listed show only a small degree of individuality. However, the court of appeal must be obliged that the overall impression that is important is based on the interplay of different elements. It did not see it as the sum of individual elements, but as the resultant. The analysis of the individual elements correctly understood it as brightening up of what contributed to the overall impression. The court of appeal has observed that when it comes to the processing of a public domain work, the type of musical processing with the stylistic devices used will usually come to the fore and that a protective performance can lie in the instrumentation and orchestration alone (cf. BGH GRUR 1968, 321, 324 – hazelnut). That is why it has correctly assumed that even an arrangement that uses the usual stylistic devices can be self-creative, because in the connection there can be that creative design that does not have to be excessively large, especially with hit music, in order to nevertheless protect it under copyright law bring to; especially if – as here – the arrangement using the usual stylistic means is not the only element that shapes the overall impression.
The appeal court’s further determination that the defendant version in the self-creative elements listed under II. 2.b above – with the exception of the restrictions made by the expert with regard to the instrumentation – largely corresponds to the processing of the plaintiff is also not under revision law complain. The determination lies in the area of the judge and is only accessible to a limited extent under review law. The revision does not reveal a revisable legal error.
The objection of the revision that the appellate court should have assumed the defendant’s arguments to be correct, in the absence of any contrary findings, that its version gives a completely different hearing impression, does not apply. The court of appeal did not explicitly focus on the hearing impression. However, it can be assumed that this has influenced the overall impression. Because, according to the minutes of the hearing on May 25, 1987, the Court of Appeals heard the opposing musical versions of the parties.
The appeal also unsuccessfully complained that the Court of Appeal failed to make procedural errors in determining to what extent the assumed correspondence in the processing of the defendant had become or faded. From the point of view of the Court of Appeal, there was no reason to make such statements because, in its entirety, it considered the corresponding – necessarily creative – elements to be decisive for the plaintiff’s processing.
Finally, the Court of Appeals, without violating the law, assumed that the established matches would justify the prima facie evidence that the plaintiff’s processing served as a template for the defendant. It has stated that in this context, those similarities that do not fall within the scope of protection of the plaintiff’s processing, such as the chromatic reversion in the third round, are also significant. for the fact that the defendant was allowed to use such an adjustment without interfering with the plaintiff’s rights had nothing to do with the probability that two composers would also use the same stylistic means in the third round, in addition to several other matches. For this reason, it further strengthens the appearance that already results from the legally relevant correspondence. A similar reasoning applies to the melody. The area of protection claimed by the plaintiff in this respect may be extremely small. However, it was a completely different question as to the probability that the defendant, as the arranger of the folk song, would have chosen a melody that was a “note-for-note analogy” to that used in the plaintiff’s work.
These findings in the judicial area do not indicate a legal error. The revision’s view that there could be no significant similarities is a separate assessment with which it cannot be heard under revision law. Insofar as the revision wishes to focus on a fundamentally different hearing impression of the defendant’s version, it can be countered that – as set out above under II. 2.c – the court of appeal held a hearing and took the result into account in its overall assessment.
Ultimately, the Court of Appeals also accepted without legal errors that the defendant had not invalidated the prima facie evidence or at least shaken it. It has concluded from the extent of the agreement between the versions of the parties that the agreement can no longer be explained by chance. It has rightly been based on the set of experience that, given the diversity of individual creative possibilities in the artistic field, a broad agreement of works based on independent creation seems almost impossible according to human experience (cf. BGH GRUR 1988, 812, 814 – Ein a little peace).
Insofar as the appeal complains that the Court of Appeal should have regarded the prima facie evidence as shaken in view of the stipulation of the stylistic devices used, which are not in themselves capable of being protected anyway, it goes to the area of judicial appraisal that is fundamentally closed to it. No revisable legal errors are shown in this respect either.