​Disputed Work

Stephan Obinger v. McDonald’s Corporation

“McDonald’s-Jingle”

Audio clip

Sheet music

 

Comment (…we’re still cogitating!)

 

Opinion [The English version is roughly translated by Google.]

Munich Higher State Court decision (German) (2011): PDF

  • Order: 

I. The plaintiff’s appeal against the final judgment of the Munich Regional Court I dated August 18, 2010, corrected by a decision of September 22, 2010 (Az. 21 O 177/09 ), is rejected.

II. The plaintiff bears the costs of the appeal proceedings, including the costs of the secondary intervention.

III. The plaintiff can avert enforcement by providing security in the amount of 110% of the enforceable amount if the defendant or the intervener does not provide security in the amount of 110% of the enforceable amount before the enforcement.

IV. The amount in dispute for the appeal procedure will be set at 35,000.00 EUR from the date of 19.05.2011, from the date of application on 19.05.2011, before that at 75,000.00 EUR.

  • Reasons:

I.

Because of the unauthorized use of an advertising melody, the authorship of which the plaintiff claims for himself, for … the plaintiff demands information from the defendant about the broadcasts of the advertising jingle and seeks the determination of their liability for damages. The regional court dismissed the action because the composition was not eligible for protection. The specific melody can only be found with difficulty on the CD presented as Annex B 2. The text part … can only be raped in two ways, namely as it is done in the composition. Therefore, both melody sequences are so dictated by the natural flow of language that they did not show the required height of creation. The three tones for the text part … are, since they only consist of a third and a second, too simple to achieve the required level of design.

The judgment, which was corrected by the decision of 09/22/2010, was served on the plaintiff on 08/20/2010. He justified his appeal lodged on September 20, 2010 within an extended period of time on November 22, 2010.

The following changes and additions are made to the actual findings in the judgment under appeal (Section 540 (1) sentence 1 no. 1 ZPO):

The plaintiff claims that his composition corresponds to the notation as presented in Appendix K 7. It results from the notation in the first line, namely the upbeat and the four notes in the first measure, namely G sharp, B flat, C sharp and Eb. The descending tone sequence Eb, C sharp, B flat and G sharp is not included in the notation, but results from the aforementioned tone sequence when it is mirrored.

The plaintiff criticizes the factual determination by the regional court as inadequate, since it did not properly clarify the disputed facts by gathering evidence, in particular it waived the requested consultation of an expert and wrongly tried to assess the question of the plagiarism itself, which is why had already failed in the grounds of the judgment. The composition must be assessed in both components … and their sound background as a uniform composition. However, the regional court assessed the parts separately and came to the actually incorrect conclusion that the plaintiff’s composition only consists of the unnamed notes for … and, separately, three notes for … The court refutes itself if, on the one hand, it argues that ” The first court could only have avoided this dilemma by recovering the requested expert opinion. Then the factual finding would have shown that the uniform composition of the plaintiff had reached the necessary height of creation and it had been adopted by the defendant for the world-famous advertising slogan without authorization. The first court could only have avoided this dilemma by recovering the requested expert opinion. Then the factual finding would have shown that the uniform composition of the plaintiff had reached the necessary height of creation and it had been adopted by the defendant for the world-famous advertising slogan without authorization.

The first court did not deal with the factual presentation of the plaintiff when determining from which tones the music for … It means to be able to recognize two different versions on Annex B 2, differentiated according to whether the emphasis is on the word … or the word … The plaintiff stated that the tone sequence for … Eb, C sharp, H. G sharp, as well as the three notes for … G sharp, B sharp, C sharp. Since all this was in dispute between the parties and their private experts, an expert opinion should have been recovered. Without knowing the sheet music, the first court could not have come to the conclusion that the melody could not be protected.

The plaintiff initially announced a motion which had information about worldwide broadcasts of the advertising jingle and a corresponding determination of damages; he now requests:

I. Set aside the judgment of the Munich Regional Court of June 9, 2010.

II. The defendant is sentenced to provide the plaintiff with information about the exact number of broadcasts of the advertising melody … throughout Germany, in particular on television, radio, cinema, and the Internet, stating the entire period of the total broadcast.

III. It is determined that the defendant is obliged to reimburse the plaintiff for all damage that has arisen from the above actions referred to under II. Or will arise in the future.

The defendant and the intervening parties request

dismiss the appeal.

The defendant defends the judgment under appeal.

The first court was able to decide the facts from its own expertise without the recovery of an expert opinion. It was able to make the necessary factual determinations independently, since it regularly has to decide on copyright disputes, especially in the field of music. There is no need for an expert opinion if the hearing comparison already leads to the result of inadequate protection. It is not necessary to create a notation for this. The legal assessment of the height of creation is incumbent on the court anyway. It correctly differentiated between several tone sequences and denied their height of creation. The recovery of an expert opinion by the appellate court is not indicated, as there are doubts within the meaning of § 529 Para. 1 No. 1 ZPO in terms of the correctness of the first-instance determination.

In the first instance, the plaintiff was unable to clarify which tone sequence he based his claims on, because the allegedly adopted first four tones of his composition consisted of the tones G sharp, B flat, C sharp and Eb according to Annex K 7, and the tones according to Annex K 8 G sharp, H, F sharp and F sharp. Insofar as the plaintiff is now based on a uniform composition of two components, this does not even exist because his composition does not contain the word … This is an everyday tone sequence consisting of only three tones.

The plaintiff replied that with the appeal he only wanted to attack the rejection of the complaint with regard to the nationwide broadcast; there should have been no extension of the suit to global broadcasting.

Because of further submissions by the parties, reference is made to the written submissions changed in the appeal process, together with the annexes and the minutes of the meeting.

By playing the sound carriers in accordance with Annexes B 2, K 9, and B 1, the Senate inspected the disputed tone sequences.

II.

19The appeal is admissible; in particular, it has been submitted and substantiated in due form and in due time. In the matter it is unsuccessful, however, because the tone sequence G sharp, B flat, C sharp and E flat claimed by the plaintiff as his composition is not a protected work of music in the sense of § 2Para. 2, Para. 1 No. 2 UrhG, so that its possible takeover by the defendant does not trigger any copyright claims. This tone sequence does not stand out in a peculiar way from common compositional means and principles or from the previously known treasure trove of forms, it is thus not shaped by the handwriting of its creator. The Senate can decide this on the basis of its own expertise, as it has repeatedly dealt with these issues and the actual basis with regard to the complained sheet music is established on the basis of the plaintiff’s declaration in the appointment.

1. According to the case law of the Federal Court of Justice ( GRUR 1981, 267, 268 – Dirlada; GRUR 1988, 811 – Fantasy), the demands on the creative level in the field of musical creation must not be set too high. From the point of view of the so-called small coin, a low level of formative activity on the part of the composer is usually sufficient to affirm the creative performance required for the lower limit of protection (Schricker / Loewenheim, 4th edition, § 2 UrhG marginal number 124). In the case of tone sequences that consist of only a few tones, the required individuality will mostly be lacking (loc. Cit. No. 125).

2. The plaintiff was only able to develop the tone sequence within a limited scope. According to his own assertion, the setting should be done according to the order in the music genre Rap / Hip Hop, for example by the music group … with their successful title … This gave him the basic musical idea, i.e. the style and rhythm of the piece. Another restriction was to develop the necessary short sequence of tones that matched the words …

3. The tone sequence claimed by the plaintiff indisputably begins with an ascending third. Insofar as the plaintiff sees an “A minor chord, therefore the harmonization of the plaintiff’s input tone a over two thirds (a – c – e)” in the brief of March 25, 2009, page 10, this agrees with the tone sequence claimed before the Senate G sharp, B sharp, C sharp and Eb do not match and is therefore out of date. It is undisputed that the third is followed by two-second steps. The “mirroring” of this tone sequence, which the defendant is said to have made, has to be disregarded because, according to the plaintiff’s own submission, it does not originate from him.

The 29th civil senate of the OLG Munich has denied the ability to protect a tone sequence consisting of five tones (A, B, C, A, G), which first moves upwards and then downwards in steps of seconds and thirds, since this is about An everyday musical phrase is about basic musical material that is accessible to anyone familiar with the simplest technical musical fundamentals ( ZUM 2000, 408, 409 – Green Grass grows). In the decision “Fantasy” ( GRUR 1988, 810 , 811), the BGH approved the qualification of the ascending third used there as a “commonplace phrase” and the eight-note tone sequence, consisting of an ascending third, a descent to the tonic and a decay in the second

It is no different here: The tone sequence also begins with an ascending third, a “commonplace phrase”. The further ascent of the line in second steps does not represent a greater creative achievement than the descent to the tonic and the fading away in the second (“Fantasy”) or as an upward movement in second and third steps and a subsequent downward movement in these steps (” Green Grass Grows “). Here, as there, it is a matter of basic musical material that is only used in a manual manner.

Insofar as the plaintiff assumes that neither the tones nor the intervals are solely decisive for the protectability of the plaintiff’s composition, but that the characteristics of the created melody determine the protectability, it should be remembered that the musical direction was specified, even based on a specific piece. It is not clear what special characteristics should be inherent in the piece. Listening to it reveals a sequence of notes in the usual style of rap sung in German. Insofar as the plaintiff relies on a rhythmically distinctive motif that can express something individual in connection with four tones and refers, among other things, to Appendix K 8, this cannot be inferred from this: Appendix K 8 already deals with sheet music other than that complained about by the plaintiff. If you want to use them anyway, the evaluations of the … made there must also apply to the plaintiff, since, according to a private reviewer, there is no rhythmic difference between these variants: It is a simple call third and the simple pentatonic scale typical of advertising. Insofar as the plaintiff relies on a ternary as opposed to a binary rhythm, the statements made by his private reviewer (Annex K 8) apply precisely to this, since the private reviewer did not limit himself to the sheet music, but also performed a listening comparison. According to the plaintiff’s own submission, the ternary rhythm is a stylistic device of swing or jazz. However, the use of a certain stylistic device cannot be protected. since there is no rhythmic difference between these variants, according to a private appraiser: It is a simple call third and the simple pentatonic scale typical of advertising. Insofar as the plaintiff relies on a ternary as opposed to a binary rhythm, the statements made by his private reviewer (Annex K 8) apply precisely to this, since the private reviewer did not limit himself to the sheet music, but also performed a listening comparison. According to the plaintiff’s own submission, the ternary rhythm is a stylistic device of swing or jazz. However, the use of a certain stylistic device cannot be protected. since there is no rhythmic difference between these variants, according to a private appraiser: It is a simple call third and the simple pentatonic scale typical of advertising. Insofar as the plaintiff relies on a ternary as opposed to a binary rhythm, the statements made by his private reviewer (Annex K 8) apply precisely to this, since the private reviewer did not limit himself to the sheet music, but also performed a listening comparison. According to the plaintiff’s own submission, the ternary rhythm is a stylistic device of swing or jazz. However, the use of a certain stylistic device cannot be protected. Insofar as the plaintiff relies on a ternary as opposed to a binary rhythm, the statements made by his private reviewer (Annex K 8) apply precisely to this, since the private reviewer did not limit himself to the sheet music, but also performed a listening comparison. According to the plaintiff’s own submission, the ternary rhythm is a stylistic device of swing or jazz. However, the use of a certain stylistic device cannot be protected. Insofar as the plaintiff relies on a ternary as opposed to a binary rhythm, the statements made by his private reviewer (Annex K 8) apply precisely to this, since the private reviewer did not limit himself to the sheet music, but also performed a listening comparison. According to the plaintiff’s own submission, the ternary rhythm is a stylistic device of swing or jazz. However, the use of a certain stylistic device cannot be protected.

The lack of protectability cannot be countered by referring to the basic motif from the first sentence of … Because the copyright quality of this movement is not based on the underlying motif, but on the fact that it became the nucleus of an entire symphony movement in a completely new way (OLG Munich, ZUM 2000, 408 – Green Grass Grows).

4. Costs: §§ 97, 101 ZPO.

5. Provisional enforceability: §§ 708 No. 10, 711, 709 ZPO.

6. Amount in dispute: § 3 ZPO. The determination is based on the plaintiff’s information in dispute, which is understandable and not questioned by the defendant and the interveners, in the appointment before the Senate.

7. The revision is not permitted because the requirements for it are not met. It is a decision on an individual basis on the basis of established case law.