OLG [Higher State Court] Hamburg Oct. 11, 2018, 5 U 57/15 (Germany)
“Auftrag Deutsches Reich“
“Schenkt uns Dummheit, kein Niveau”
Comment (…we’re still cogitating!)
Hamburg Higher State Court decision (German) (2018): PDF
Google-translated rough English version of Court decision:
- The plaintiff’s appeal against the judgment of the Hamburg Regional Court of February 26, 2015, Az. 310 O 315/11, is rejected.
- The plaintiff has to bear the costs of the appeal proceedings.
- The judgment is provisionally enforceable. The contested decision is provisionally enforceable without security. The plaintiff can avert the enforcement of the defendant by providing security of 110% of the enforceable amount based on the respective judgment, if the defendant does not provide security of 110% of the enforceable amount before the enforcement.
- The appeal against this judgment is not permitted.
I.The plaintiff claims against the defendant because of the infringement of his copyright in a musical composition for cease and desist, consent to the drawing as co-author at GEMA as well as information and compensation by way of a step action.
The plaintiff is a musician of the music group “…”, which is popular in the right-wing scene. In 2006 the company released a sound carrier with the title “…”, which included the piece of music “…” (hereinafter: …). Because of the piece, reference is made to track 1 of the CD that came with the file (sheet 75R). 20,000 copies of the sound carrier were sold. The pieces on it were not reproduced on the radio. On December 28th, 2007, approx. 1½ years after publication, the sound carrier was indexed by the Federal Inspectorate for Media Harmful to Young People and thus subjected to the resulting prohibition.
The defendant is a member of the music group “…”. This released the album “…” in 2010. This contained the piece of music “…, …” (in the following: …), for which reason reference is made to track 2 of the above CD. The defendant is the composer of this piece – the intro of which the parties are in dispute, however – and is registered as such with GEMA.
The plaintiff submitted that he was the creator of the composition of the piece … The guitar riff in the intro of the piece (16 bars from sec. 34 of the recording stored on the CD attached to the file) enjoys independent copyright protection as part of the work. In his – the plaintiff – copyright infringing manner in the composition … was taken over (therefrom sec. 22).
The defendant submitted that the disputed part of the play … – the creation of which the defendant contested by the plaintiff – was not subject to copyright protection. In any case, there is no violation of the law because he – the defendant – did not know the work … the work … and the guitar riff contained in it when he was composing the work, and there was at most a legally permissible accidental double creation.
With regard to the further details of the first-instance party submissions as well as the last applications submitted by the parties to the regional court, reference is made to the facts of the judgment under appeal.
With this, the regional court dismissed the complaint in its entirety after obtaining the opinions of two musicological court experts. In support of this, it stated that the action was admissible but not well-founded. In particular, the subsequent expansion of the action to include the application for an injunction that was not originally asserted is also permissible. The defendant did not agree to the extension of the action, but this had to be admitted as relevant. However, all claims are unfounded, with the request for information and payment submitted as a step claim being dismissed on the merits. All of the plaintiff’s requests are required that the composition of the piece of music in dispute … by the defendant is unfree processing (§§ 23, 24 Para. 2 UrhG) of part of the composition of the plaintiff … act. However, the court is not convinced of this. Rather, there remained doubts about the subjective component. It cannot be ruled out that the attacked passage from the injury pattern (…) is not a takeover of the guitar riff from …, but rather a double creation. In view of the diversity of individual creative possibilities in the artistic field, a broad correspondence of works based on independent creation seems to be basically impossible according to human experience. The prima facie evidence of a takeover based on this according to the case law of the BGH could, however, be shaken. In the case of designs that are only in the area of similarity, double creations in the area of the so-called small coin, where the scope for individual creation is limited and individuality is only revealed to a modest extent, are more likely. In the event of a dispute, the sample of suit, which is only the so-called guitar riff from the piece … enjoys copyright protection as a work of music according to § 2 Paragraph 1 No. 2, Paragraph 2 UrhG, but only in the area of the little coin. The sample in suit is generally accessible to independent protection as part of the work, even if, within the framework of the original composition … it only represents the accompaniment of the singing voice heard at the same time, because according to the findings of the expert and the Chamber’s own hearing impression, it is perceived as a separately audible design. It also shows the required height of creation. It is true that the two motifs that make up the part of the work are not individually protectable due to a lack of individual character. But something else applies to the complementary figure shaped by the two motifs through the interplay of guitars and bass; Overall, this still fulfills the requirements for a melody in the legal sense and, due to its design, shows the height of creation in the area of the small coin. With regard to the guitar riff at issue, the infringement sample falls within the scope of protection of the complaint, as the expert has convincingly stated. However, no prima facie evidence of knowledge of the defendant and deliberate acceptance or at least unconscious borrowing of the sample can be drawn from the similarities in the musical design. The similarity here relates to obvious musical solutions in the area of the small coin. Even from the further circumstances of the case, the board was unable to gain the conviction that the defendant must have known … when composing … Overall, she does not see a basis for prima facie evidence in terms of the case law of the BGH, because the defendant has denied knowledge of the sample complaint from … and the musical similarities between the sample complaint and infringement sample cannot be explained with such knowledge alone.
The plaintiff’s appeal is directed against this, with which he is attacking the judgment dismissing the complaint as a whole and pursuing his first-instance requests. The plaintiff submits that the expert opinion of the court expert Prof. Dr. … is correct and should not be attacked. In its – surprising – assumption that a double creation could not be ruled out, the district court did not adequately appreciate how the defendant could have come up with the idea of adopting the almost identical riff with the otherwise non-existent accompanying rhythm at the beginning of the song, although the piece was in all other molded parts are based on other material. The infringement pattern, unlike the complaint pattern, is not conclusive, but begin with the part of 16 chords that is at issue here and then continue in a completely different way. This speaks against a double creation and for the fact that the defendant knew the melody at issue and wanted to include it in one of his songs. The identical instrumentation, the way of playing with so-called power chords as well as the same key and practically identical speed speak for this. It should also be taken into account that the defendant is a “Nazi”; that he as such could not have been interested in the music of the plaintiff’s band, which can be assigned to the Nazi scene, is far removed. For the fact that the defendant both knew the plaintiff’s music group “…” and had heard their music, the plaintiff names two witnesses – for the first time – which he was only able to find after the last oral hearing at the regional court. In addition, it is to be assumed that the defendant attended a concert by the group … in Verona on April 7, 2007, at which the title at issue (…) was played. In addition, various criteria speak in favor of unconscious removal, so that the defendant should have provided evidence of double creation. Contrary to the opinion of the regional court, the fact that the work at issue falls within the scope of the small coin does not speak against the prima facie evidence. The expert did not find that the area of the small coin had “just” been reached; rather, according to his report, the necessary height of creation has been fully reached. Finally, the plaintiff submits, the defendant “probably (…) bought the disputed sound carrier” through the distribution of the record label “…”; at a sub-label of the company – which has not been disputed – the first CDs of the defendant’s band were also released.
The plaintiff requests:
The defendant is sentenced by amending the judgment of the Hamburg Regional Court announced on 02.26.2015 on Az. 310 O 315/11,
- When avoiding a fine of up to € 250,000 due for each case of violation, alternatively regular detention for up to 6 months or regular detention for up to 6 months, in the case of recurrence, regular detention for up to 2 years, to omit the musical work “… … “, As published on the sound carrier” …-… “, to reproduce and/or distribute and/or perform and/or make publicly accessible by yourself and/or by third parties;
- to consent to the registration of the plaintiff at GEMA as the author of the musical work with the title “… …” GEMA database work number … with 20% to 100% shares in the composition;
- a) to provide information about the income he has achieved from the exploitation of the work referred to under item 1, by submitting the accounting documents of GEMA and also by listing the publishing, editing and synchronization rights granted and the remuneration obtained as a result and also by submitting appropriate contracts and accounting documents;
b) if necessary, to affirm the correctness and completeness of his information on oath;
c) to make payment to the plaintiff after the information has been provided in an amount to be determined plus interest of 5 percentage points above the base rate since pending.
The defendant requests
dismiss the appeal.
He defends the contested judgment and submits that the plaintiff is already incorrectly assuming that the regional court has assumed a double creation; in fact, it was only correctly assumed that there was no prima facie evidence in the case of similarities in the works of the small coin. The plaintiff was therefore unable to provide the evidence that the plaintiff had not been processed free of charge. It does not matter at all whether the little coin has just been reached “just” or not. For the part of the work at issue here, the height of creation should actually have been agreed.
For further details of the state of affairs and the dispute, reference is made to the written documents exchanged between the parties, together with the annexes, and to the minutes of the regional court and the senate.
1. The permissible calling does not lead to success. The regional court rightly and with correct justification dismissed the claim as unfounded. The claimant is not entitled to the asserted claims from any legal point of view.
a) The claim for injunctive relief does not arise from § 97 Paragraph 1 in conjunction with §§ 23, 24 Paragraph 2 UrhG. The decision of the regional court that the defendant did not violate the copyright of the plaintiff in the composition of his work … in the or in part of the work … because it has not been established that he knew it, is not open to any doubts would require an amendment of the decision according to the standards of §§ 513, 529 ZPO. Rather, the regional court correctly assumed that the plaintiff, burdened with evidence for the prerequisites for the injunction claim, was unable to prove that the defendant’s work is a so-called unfree adaptation of the musical work …
aa) It already seems questionable whether the guitar riff asserted by the plaintiff as a sample of the suit from the beginning of the composition actually meets the requirements of a copyrighted work of music within the meaning of Section 2, Paragraph 1, No. 2, Paragraph 2 of the Copyright Act. The publicly appointed and sworn expert Dr. … had answered the question in the negative and – with perfectly understandable arguments – took the view that, although the overall composition … was certainly protectable, the sample of complaint in itself lacks the required level of creativity. In contrast, the expert later commissioned by the regional court, Prof. Dr. … also assumed that the sample of complaint has only a small self-imprint and describes it as an obvious solution, whose motives can be found by mere finger exercises. However, he did not take this assessment as an opportunity, as did Dr. … to deny the character of the action in the sense of § 2 UrhG. Rather, he has expressly affirmed the ability to be protected – in particular in his clarifying email to the regional court of November 7, 2014 (sheet 224 fdA). However, it seems doubtful whether the expert did not arrive at this assessment solely because he based on a legally inaccurate standard of the protectability of musical compositions. From the written report of the expert Prof. Dr. … (there p. 9 f.) results to the extent that he assumes the highest court rulings place only “negligibly low requirements” on the “level of design of works of music” and the protection is also extended to “the simplest formations of music”. On the other hand, according to the case law of the BGH, which the Senate follows, it is also necessary in the area of the so-called “small coin” to distinguish protectable musical works from purely craftsmanship that is not subject to copyright protection by using formal design elements (see BGH, GRUR 2015, 1189 Rn. 64 – Goldrapper).
bb) The Senate can, however, ultimately leave it open whether, on the basis of this legal standard, the expert Prof. Dr. … should have come to the conclusion that the sample of the lawsuit from the piece of music … already lacks copyright protection. In any case, the regional court rightly assumed that the plaintiff provided evidence of an adoption of the possibly protectable part of the work from … into the composition … acc. §§ 23, 24 Abs. 2 UrhG has not provided. As stated in the contested decision with appropriate reference to the relevant supreme court case law, what matters in this respect is the determination, that (objectively) a copyrighted melody has been extracted and that (subjectively) the composer of the new melody knew the older melody and consciously or unconsciously resorted to it in his work. In contrast, a so-called double creation, in which the younger work also objectively agrees with the older, is not a factual element, but subjectively this is not based on an (at least unconscious) takeover of the older work known to the creator of the new work, but on one Coincidence (see BGH, GRUR 1988, 812, 814 f. – A bit of peace; KG, GRUR-RR 2002, 49, 50 – Vaterland).
Insofar as the regional court in the present case meant that it could not rule out whether the matches between the lawsuit and the infringement model were based on such a double creation, this does not reveal any legal error. As the regional court did not fail to recognize, the possibility of an accidental double creation is generally also far removed in the field of musical creation. According to the case law of the Federal Court of Justice, which the Senate also follows in this respect, it must be assumed for the assessment of the question of whether existing matches between two works are due to chance or to the fact that the older work served the author of the new work as a model the diversity of individual creative possibilities in the artistic field an extensive identity of works that are based on independent creativity, seems almost impossible according to human experience (cf. BGH, GRUR 1988, 812, 814 – A bit of peace). If two pieces of music largely match, prima facie evidence can therefore speak in favor of the assumption that the older work has been adopted by the younger work (cf. KG, op. Cit.) And – conversely – must give weighty reasons for the assumption of a coincidental double creation (cf. . 815).
However, the Senate sees such reasons here – with the contested judgment – in the statements made by the expert Prof. Dr., which were convincing and also expressly not challenged by the plaintiff. …, which thus undermine prima facie evidence. By means of a comprehensible harmonic-chordal analysis of the sample of complaint, the expert has proven that the so-called complementary figure of the same can indeed claim melody protection in the area of the so-called “small coin”. The Senate does not understand its statements to the effect that this area has only just been reached, that is to say that the complaint model is to be located at the lower limit of the “small coin”. However, the regional court correctly inferred from the expert’s written report that that the pattern of complaint must nonetheless be viewed as an obvious solution, which a guitar player in the field of rock music can already come up with through finger exercises and which is one of the known building blocks from which structurally but musically coherent structures are created in the field of rock and pop music. Therefore – according to the assessment of the expert – a combination of complementary figure and “turn around” that is sufficiently similar to the complaint model can be demonstrated with considerable probability in the repertoire of rock and pop music of the last decades. From which, in the field of rock and pop music, structurally but musically coherent structures are created. Therefore – according to the assessment of the expert – a combination of complementary figure and “turn around” that is sufficiently similar to the complaint model can be demonstrated with considerable probability in the repertoire of rock and pop music of the last decades. From which, in the field of rock and pop music, structurally but musically coherent structures are created. Therefore – according to the assessment of the expert – a combination of complementary figure and “turn around” that is sufficiently similar to the complaint model can be demonstrated with considerable probability in the repertoire of rock and pop music of the last decades.
In this situation – in contrast to a piece of music that is also less concise in the result, but which a musician does not come up with easily – there is no apparent reason to assume that a double creation is further than a (conscious or unconscious) takeover of the Sample complaint in the work … There is therefore no room in the event of a dispute for the assumption that the creator of the newer work resorted to an older work when creating it. Because it is based precisely on the fact that in two opposing works characteristics match without an explainable reason, which because of their peculiarity or in this combination could hardly be created so consistently by different people if they had been active independently of each other (cf. BGH, GRUR 1971, 266, 268 f. – Magdalene aria).
As a result, the plaintiff was responsible for providing full evidence of unfree processing, i.e. the (at least unconscious) adoption of the complaint model by the defendant when the infringement model was created. However, the plaintiff has not yet provided any corresponding evidence. Insofar as he asserts that the intro at issue fits into his own complete work (…) but appears like a foreign body attached to the defendant’s piece (…), the regional court has this in a manner that is not objectionable rated as merely a relatively weak indication of the adoption of the corresponding part of the work, on which a conviction within the meaning of Section 286 ZPO cannot be based. The same applies to the instrumentation and the arrangement. As far as the plaintiff claims, He fails to recognize that the correspondence between the lawsuit and infringement models in these elements could not have arisen by chance, and that the assessment of the lawsuit model – which he expressly shared – as an obvious solution by the expert Prof. Dr. … refers specifically to the complementary figure as a whole, i.e. expressly also to the execution of the melody by combining the sounds of the lead guitar and the power chords of the rhythm guitar.
Also on the alleged by the plaintiff that the defendant belonged to the right-wing scene, the regional court rightly did not base the finding that he must have been aware of the sample complaint when the infringement sample was created. In this respect, there is already no specific submission by the plaintiff, providing evidence that the defendant’s membership of the right-wing scene covered the period in question in which the sample complaint was published (2006 to 2007). For his contested lecture, that the defendant probably attended a concert of the group “…” in Verona in 2007, the plaintiff also offers no evidence.
The witnesses …, … and …, who were named at second instance for the first time, were also not heard in this respect. It can remain open to what extent the plaintiff with this evidence according to Section 531 (2) ZPO is to be permitted at all. In any case, there is no conclusive presentation that would be included in the testimony of these witnesses. The plaintiff does not even name the witness … for one of his alleged facts, but only as a probable fact, namely that the defendant also bought the disputed sound carrier from the label “…”. In fact, this assertion remains largely unsubstantiated in that the plaintiff does not disclose which process the witness ……… is supposed to have actually witnessed and therefore should be able to testify. The examination of the witness would therefore amount to research evidence.
b) For the reasons mentioned under a), the follow-up claims of the plaintiff pursued with the applications under 2 and 3 do not exist either.
2. The procedural secondary decisions follow from §§ 97 Abs. 1, 708 Nr. 10, 711 ZPO.
There is no reason to allow the revision. The decision is based solely on the application of legal principles clarified by the highest court to the present individual case.