Royalty-free music

Logo GEMA-free

Royalty-free music is the name of music to their use of the collecting society GEMA ( GEMA ) to collect GEMA royalties is not eligible. However, if GEMA cannot check and exclude its own authority itself, the music usages of domestic and foreign dance and light music are not recognized as GEMA-free, so that usage fees for this can be claimed through legal channels even without an existing authorization. This type of music, so called, has been approved by the German court rulings as a presumed fact that it always belongs to GEMA and that it is probably still protected by copyright (see GEMA presumption ).

In response to a sufficiently justified request, GEMA is legally obliged to confirm that GEMA is free of music usage, but can make the issuing of such a certificate dependent on reimbursement of the costs incurred through the inspection ( Section 55 VGG ).

Legal requirements

The GEMA freedom of music is fundamentally dependent on

• for what purpose music is used,
• whether the musical works used are under copyright protection,
• whether the type of use results in a statutory remuneration obligation,
• whether the use affects the inventory of the music repertoire perceived by GEMA,
• whether certain information and proof obligations have been provided for the use.

Purpose of use

Private uses of music are always GEMA-free, regardless of which works are used. In contrast to an entrepreneur, a consumer only aims to satisfy his private needs, which are fundamentally not affected by licensing claims for remuneration (cf. § 53 UrhG ). In principle, no GEMA fees have to be paid for claims that are neither public nor commercial.

However, acts of use of music directed at the public can also be GEMA-free, namely if certain purposes are pursued (youth welfare events, social welfare, care for the elderly and welfare, prisoner care and school events, § 52 UrhG) and they also are not for profit.

Public domain

Furthermore, the commercial use of music is basically GEMA-free, which is subject to the public domain , i.e. whose composer or songwriter has been dead for more than 70 years, or whose copyright protection according to § 64 UrhG has expired. All music works in the public domain are therefore GEMA-free, even for public and commercial use. However, the use of the processing of a work in the public domain requires a GEMA license if the processing is essential under copyright law, i.e. can be protected, and the processing rights of the processor are exercised by GEMA.

Types of use with statutory remuneration

Certain types of commercial music uses are generally not GEMA-free, as statutory remuneration claims must be met under the Copyright Act:

• Anyone who offers copies of music to the public for rent must pay appropriate remuneration for them, which can only be claimed by a collecting society or GEMA (see § 27 UrhG).
• Manufacturers of devices that are suitable for the reproduction of music (e.g. blank CDs, SD memory cards, USB sticks, MP3 players, hard drives) must pay flat-rate fees to GEMA, regardless of whether and which musical works they provide Devices will later be affected at all (see § 54h UrhG).
• In the case of cable retransmission (e.g. broadcast on television), GEMA is entitled to levy fees even if the music broadcast does not belong to its repertoire (see Section 50 VGG).

Regardless of whether the music actually belongs to GEMA's music repertoire, license fees are due from GEMA for such types of use.

Types of use without statutory remuneration

For music uses without a statutory obligation to pay remuneration (performance, playback, duplication and distribution of copies, including online), there is a GEMA license obligation if the works are still protected by copyright and also belong to the GEMA repertoire, i.e. their authors exercise their music copyrights according to the collecting societies law.

However, if the music authors do not have an authorization relationship with a collecting society, their copyrighted music can be used GEMA-free, because GEMA has no authority over external copyrights. The authors can therefore use their works themselves completely independently of GEMA, make them available for any purpose and demand their own remuneration for them. You can also publish your music in whole or in part as free music for free use, e.g. B. as CC music under Creative Commons license. For commercial music use, the respective license terms of the exploitation facility are then decisive, but completely GEMA-free.

Since the introduction of the VGG on June 1, 2016, GEMA itself can no longer appear as the right holder of music (cf. § 5 VGG), which means that its legal capacity has only been limited to the specific representation of its affiliated beneficiaries and members. Likewise, according to the new law, music rights holders or authors can now also entrust independent exploitation institutions with the perception of their works (cf. § 1 and § 4 VGG), whereby the previous monopoly of GEMA as a company only authorized to perceive music has been lifted.

Information and evidence obligations

Music uses without a statutory obligation to pay remuneration, which do not affect the stock of the music repertoire performed by GEMA, are not GEMA-free under certain circumstances, namely if certain notification and proof obligations are not met:

• Certain information about the musical works used must be provided about music uses for which GEMA has already granted general usage rights (see § 41 VGG). Unless it is proven beyond doubt by the author's name and music title that the music does not belong to the GEMA repertoire or is already in the public domain, it is legally presumed that the collecting society is authorized to perceive it (see § 48 VGG), which means that the use of music is then not GEMA free is.
• GEMA has a monopoly on certain types of music on the basis of extensive reciprocity agreements with domestic and foreign collecting societies in the exercise of musical exploitation rights. If, when the relevant types of music are used, it cannot be proven beyond doubt by the author's name and music title that such reciprocity agreements with GEMA do not exist, or that the music may already be in the public domain despite existing contracts, the fact can be assumed or assumed that GEMA is entitled to perceive it, i.e. the use of music cannot be GEMA-free (see GEMA presumption ).

Commercial royalty-free music

Composers and lyricists can have the exploitation rights of their musical works exercised by collecting societies through authorization contracts, so that in Germany GEMA can levy license fees for their use (royalties), similar to a debt collection company. This concerns the rights of reproduction or performance and mechanical reproduction. The exercise of the enforcement of royalties for the use of the film production right (also called synchronization right or work connection right) can also be transferred to GEMA. However, the authors can also exercise this right independently and negotiate with the users. Administration contracts are personal, according to which GEMA is entitled to collect royalties for all works by the respective composer (this does not apply to the exercise of the so-called "great right" - see the administration contract).

Anyone working in public facilities, such as B. shops, restaurants, hotels, fitness studios, doctor's offices, sports stadiums, etc., who want to have music played or background music to the media in order to present it publicly or use it commercially without having to pay GEMA fees, so-called GEMA - Use free music by composers who have not concluded a management agreement with a collecting society such as GEMA. The rights of use are then granted directly by the composer and are freely negotiable in terms of type and scope. The composer is responsible for exercising his rights. Whereby § 32 (1) UrhG cannot legally be excluded for both parties , according to which the author or his legal successor (heir) can assert a claim to appropriate remuneration - even years after the rights have been granted, unless he has granted the rights free of charge. This legal requirement usually prevents authors of GEMA-free music from unavoidably granting a user the rights to use a work. For example, a contract that allows an unlimited number of copies (DVDs, CDs, USB sticks) to be made with a licensed GEMA-free music title and sold (e.g. for computer games or music CDs) would be § 32 para. 1 of the Copyright Act. In a similar case involving translators' fees , the Federal Court of Justice ruled that an appropriate contribution is feasible and that there is a right to appropriate remuneration in the form of a percentage of the proceeds.

There are commercial providers of production music who offer GEMA-free music for this purpose. These publishing-like companies usually grant customers (users) a simple right that entitles them to public and commercial use of a finished music track. The user should ask the providers of GEMA-free music to confirm whether the GVL rights have also been clarified for the use of the produced title . The largest selection are instrumental titles from the fields of dance , pop , relaxation and film music. GEMA-free vocal recordings are usually not found. GEMA-free music should not be confused with royalty free music . Works by a composer who is a member of a collecting society can also be royalty free . Royalty free means that the publishing rights (film production right) and, above all, the ancillary copyrights to the finished productions have already been clarified. However, if these works are registered with a collecting society, GEMA fees must also be paid for these titles.

GEMA-exempt music from GEMA members

Every composer or publisher who is a member of GEMA also has the option of exempting GEMA from the obligation to perceive registered works, provided that the planned exploitation is an audiovisual production that is not a television production or commissioned production. At the same time, the author or publisher declares that they will exercise the production rights in their own name vis-à-vis the producer of the audiovisual work. This exemption enables GEMA members to produce music for customers of the film market that has a status comparable to that of GEMA-free music. The author or publisher is still obliged to register his original work as well as the audiovisual work with GEMA. The royalties , which are usually collected by GEMA from the user and distributed to the member, are in this case the subject of direct negotiations between the author and the user. It should be noted, however, that all other rights - such as in particular the right to mechanical reproduction and the right to perform - remain with GEMA.

Duplication and pressing of audio or audio media

Pressing plants usually conclude a contract with GEMA, according to which they make the pressing of media, in which music works are reproduced alone or among other things, dependent on the client reporting the production to GEMA. If the client proves in the so-called GEMA registration form that only GEMA-free works are reproduced on the audio or video carrier, he is exempt from paying GEMA fees.

Legal presumption

For information or remuneration claims about certain types of music usage, German copyright law stipulates that these can only be asserted by a collecting society ( Sections 20b, 26, 27, 45a, 49, 52a, 52b, 54h, 63a, 78 , 79a and 137l UrhG). If a user relevant for these special cases does not fulfill his obligations or does not fulfill his obligations sufficiently, it is legally stipulated in the event of a dispute that the collecting society is presumed to have authority (cf. § 48 and § 49 VGG). In these cases, GEMA can assert claims under licensing law, even without having to provide evidence of this itself ( reversal of the burden of proof ).

Insofar as GEMA's rights of observation are affected by a contract or a violation of the law, statutory rights to information also apply to other types of music usage. Because GEMA is legally obliged to grant anyone who requires it to grant usage rights for the musical works it collectively perceives (GEMA repertoire) ( Section 34 (1) VGG), it can apply to anyone who has previously obtained a usage permit ( Section 42 (1) VGG) also demand certain statutory information requirements ( Section 41 (1) VGG). Music users who, in turn, have not previously obtained a corresponding usage permit, are nevertheless legally obliged to provide comparable information about this, provided that GEMA exercises the usage rights to these works ( Section 42 (2) VGG). So if claims to information relate exclusively to GEMA's repertoire, these can only be asserted by GEMA, so that the presumption prescribed by law ( Section 48 VGG) is also relevant for these cases. In the event of a dispute, GEMA does not have to provide additional evidence of its authority in order to be able to enforce licensing claims.

A non-existence of information obligations is in turn stipulated by law for music performances on which generally unprotected, i.e. public domain works of music are used ( Section 42 (2) VGG). In the case of uses of works of music protected by copyright that do not belong to the collection of collecting societies (GEMA repertoire), the author or the holder of the rights has a legal right to information.

Music uses that can not only be legally perceived by a collecting society and that do not affect GEMA's repertoire in any case do not result in any statutory information or remuneration obligations vis-à-vis GEMA, i.e. also no legal reversal of the burden of proof. Claims to information about such works are only subject to the self-determination rights of the authors and may only be demanded by GEMA itself only with their express permission, unless the legal protection period has already expired 70 years after their death, i.e. their works are already in the public domain ( § 64 UrhG).

However, if this undisputedly affects works that belong to popular music, the " GEMA presumption " developed by German case law can , in the event of a dispute, regardless of legally regulated presumptions, result in considerable information disputes or even license claims by GEMA by reversing the burden of proof.

GEMA presumption

This presumption regulation was strengthened by the constant jurisprudence of the chamber court before the Second World War under the impression of the monopoly status of the GEMA predecessor STAGMA as prescribed by the STAGMA legislation of the Third Reich and further developed in the post-war period by the Federal Court of Justice for GEMA.

Basic judgment of the Federal Court of Justice

The decision of the Federal Court of Justice is the starting point of GEMA's presumption that when works are used “domestic and foreign dance and light music” it is to be assumed that “for the legal status before the war”, i.e. in view of the legally prescribed monopoly entitlement of STAGMA to Mediation of musical rights of use (cf. STAGMA law ), now also for GEMA a "if not legal, but actual monopoly position" in the mediation of music rights for the so-called music inventory, "with regard to the long term of protection of musical works", presumably still comprehensively hold.

Accordingly, the Supreme Court has by landmark ruling issued the word formations "domestic and foreign dance and light music" legal significance in a particular musical repertoire that before the war, so in a certain period, have heard the inventory of that STAGMA, so continue the inventory belonging to the same company, now called GEMA, although the copyright protection has probably not yet expired.

However, this judgment was in no way based on the fact that this formerly legal, and therefore retrospectively “actual monopoly” for this period might now also be subject to newer musical works of a comparable type, i.e. “for the legal status after the war”. However, no delimiting legal term was defined that would describe newer music in a comparable way in any other way, because the legal dispute on which the judgment was based was not decided on music rights that only became relevant after the legal monopoly of the STAGMA, now known as GEMA, was lifted .

"Domestic and foreign dance and light music"

In view of this situation, GEMA unceremoniously declared the repertoire transferred to it for perception after the war as "domestic and foreign dance and entertainment music" and in further legal disputes, in accordance with this choice of words, invoked the stipulations of the aforementioned basic judgment of 1955. In this way, the GEMA presumption has been able to lead to court decisions over a period of more than 60 years, as a result of which GEMA was again and again granted a monopoly of rights ownership, as it was at the time of its special status prescribed by the NS state by the STAGMA Law prevailed. The choice of terms used by GEMA “domestic and foreign dance and popular music” was regularly and literally recognized as a stipulation of the basic judgment of 1955 and continued to lead to the confirmation of corresponding monopoly rights within the meaning of GEMA. Because GEMA's own legal capacity as an association by virtue of state permission has so far allowed GEMA to be able to litigate itself as the holder of rights under copyright law, i.e. this play on words also completely independent of the copyrights actually exercised by the music rights holders affiliated to it through flat-rate allegations on (GEMA- ) To operate assumption basis. In addition, GEMA has so far been able to consolidate its position with the fact that no collecting society other than GEMA could be responsible for mediating certain music rights in Germany.

Containment through the new collecting society law

Since the introduction of the VGG on June 1, 2016, GEMA can no longer appear as the owner of the rights of the music it supposedly or presumably represents (cf. § 5 VGG). It must now legally limit itself to the copyrights of the authorized persons and members actually associated with it that are personally entrusted to it. Likewise, GEMA can no longer refer to its previous unique selling point as the only permitted company for the exercise of musical copyrights. Because according to the new law, exploitation institutions can now also be entrusted with the perception of musical works (see § 1 and § 4 VGG), which are completely independent of GEMA. This means that GEMA can still legally represent the authorized rights holders. However, it can no longer have the right itself, i.e. in its own name, to make blanket claims from copyright law, let alone to assert an alleged monopoly over it for itself in court. The GEMA presumption should therefore no longer be applicable in legal disputes about general claims by GEMA if they cannot be justified directly by the specifically exercised copyrights of the authorized affiliates.

Light music

Popular music is a designation from the exploitation practice of German-speaking collecting societies for a certain part of the music repertoire (light music ) transmitted to it for perception , which is also used accordingly by the permanent jurisprudence as a legal term in connection with the so-called GEMA presumption. Unauthorized use of light music will therefore be prosecuted as copyright infringements , which can only be legally averted by providing evidence of a copyright protection period that has already expired . The use of light music protected by copyright therefore always leads to a licensing obligation towards GEMA and, in the case of legal disputes due to unauthorized use, to a reversal of the burden of proof . Music protected by copyright that is not part of the comprehensive, domestic and foreign inventory of GEMA's repertoire can therefore not be light music in the sense of the case law on the GEMA presumption and accordingly cannot be subordinated to this legal term.

Criticism and rejection of the GEMA presumption rules in public

Against the background of the increasing use of free licenses such as Creative Commons , the GEMA presumption rules have come under increasing criticism because their opponents often understand them as favoring the economic interests of the music industry lobby, which is no longer comprehensible under the rule of law. After an online petition had reached the required number of minimum signatories in October 2012, the petitions committee of the German Bundestag dealt with the issue. Critics of the terms and formulations used in the petition found these to be unsuccessful because the respective applicability requirements of statutory presumption regulations (copyright law) were not clearly delimited from one another in relation to the actual GEMA presumption (legal clauses of the Federal Court of Justice), i.e. they were obviously confused or misunderstood. This is probably one of the reasons why the Federal Government has continued to support GEMA (presumption) and has confirmed its actual monopoly position for the exercise of international exploitation rights for light music repertoire in Germany. The Cultural Commons Collecting Society (C3S) wants to establish itself as an alternative to GEMA for music under free licenses . The GEMA presumption would (presumably) be invalid if it were recognized. However, the C3S has not yet been recognized by the German Patent and Trademark Office as a supervisory authority, which is in charge of the state supervision of the collecting societies. In addition, it is not certain whether the introduction of a second collecting society would invalidate the GEMA presumption rules per se. It is quite conceivable that a second recognized collecting society has its own right to information from the law on the exercise of copyrights and related rights, which exists in addition to GEMA's (co-) information claim. The GEMA presumption is thus viewed as a general right to information of every recognized collecting society - including the C3S, provided that this is recognized by the German Patent and Trademark Office and light music is actually part of its repertoire, i.e. through corresponding reciprocity agreements with domestic and foreign collecting societies, including the C3S would join an actual monopoly in the management of rights for this type of music. GEMA will, however, probably not want to share its current monopoly position for light music in Germany with other German collecting societies, so that at least the GEMA assumption will remain as before and the C3S will then have to designate the music repertoire entrusted to it for perception in a different way to formally separate it from the GEMA repertoire inventory (types of music, light, serious and F music) and to be able to differentiate it in terms of copyright. In this way, each individual collecting society could possibly set up its own presumption rules, depending on how the respective perceived, alternative music repertoire inventory is individually designated, without legal problems arising from the legislation or the existing GEMA presumption rules.

Free music

→ Main article: Free music

For so-called free music , as it is often sold via Netlabels and whose license is based on the GPL , there are also no GEMA fees and, moreover, no buy-out lump sums, since it is completely free to use. Here, however, GEMA legal problems can arise for the user if the composer / author of the musical work has in the meantime concluded an authorization agreement with GEMA or a foreign partner collecting society, whose works now belong to the repertoire of domestic and foreign light music. In addition, there may be related property rights ( ancillary copyrights ), for example of the performing artist (musician involved in the work).

GEMA warns authors not to publish free music under free licenses, because that is the case

• the work is irrevocably made available to the public,
• without entitlement to remuneration
• worldwide
• for the entire term of protection.

If the free license is sufficiently documented, GEMA cannot assert any rights for these works, not even after the author joins GEMA (later). Anyone who is already a GEMA member has transferred their rights of use to GEMA alone and can therefore only exercise their rights after the termination of the authorization agreement with GEMA. B. make them available to the general public under a Creative Commons license. GEMA does not allow its members to place individual works under a free license. (The same applies to the AKM in Austria.)

Legal situation if the author subsequently joins GEMA

If the composer or author of a GEMA-free licensed title joins GEMA, the user generally incurs GEMA fees, provided he (the user) continues to use the music, usually also for the previous titles GEMA admission were licensed. An exemption for compositions that were created before joining GEMA or a non-perception to be agreed with GEMA is not possible for authors, provided they are also rights holders, insofar as it says “[…] The authorized person transfers herewith GEMA [...] all [...] copyrights to which it is currently entitled and which will accrue, accrue again during the term of the contract ”.

Through an irrevocable and exclusive binding of a composition by a GEMA-free composer to a respective rights holder (e.g. publisher) or an express guarantee from the composer to a customer (user), it is possible to guarantee an unlimited guarantee of GEMA-freedom. This is possible through the wording in the GEMA authorization agreement or management agreement, which is based solely on current or future copyrights (see text above). Since a “ unencumbered acquisition ” of works that have already been transferred to third parties before joining GEMA is not possible, these are not covered by the authorization contract - therefore irrevocable (see above). These “pre-contractual” rights cannot be unilaterally overridden by GEMA's management or authorization agreement by joining GEMA at a later date or joining a foreign collecting society (e.g. ASCAP, BMI, PRS). In practice, in such cases, GEMA requires proof from the rights holder or composer in the form of a music track list, which is then excluded from GEMA's perception. In this case, declarations of exemption from providers or composers who can expressly and in writing guarantee "unlimited GEMA freedom" will only remain valid if the composer joining GEMA notifies GEMA of this list of music titles. If the composer fails to notify us, the “unrestricted GEMA freedom” is irrelevant for GEMA perception, i. H. even if a music publisher, composer or other rights holder is responsible for guaranteeing, GEMA will charge the user GEMA fees. You should therefore treat any exemption from a licensor with caution, even if it was issued under a guarantee. If the exemption is untruthful and the music used is not GEMA-free, there is a risk of a penalty. Licenses should not be made out to a pseudonym of the composer, since GEMA has a fundamental right to be informed of the author's name. The exact provisions result from the provisions of the Collecting Societies Act and Copyright Act .

literature

• Karl Riesenhuber : The interpretation and control of the management contract. De Gruyter, Berlin 2004, ISBN 3-89949-183-1 ( publications on European and international private, banking and commercial law. Volume 1).

Web links

• GEMA artist directory

Individual evidence

1. ↑ BGH, press release No. 207/2009 : Federal Court of Justice decides on translator fees .
2. ↑ BGH, judgment of June 24, 1955, Az. I ZR 178/53, full text = BGHZ 17, 376-386 = NJW 1955, 1356-1357.
3. ↑ Does the Gema assumption really have to go? The time of October 18, 2012.
4. ↑ Stefan Krempl: Federal government stands behind the "GEMA presumption" Heise.de of November 5, 2012.
5. ↑ Stefan Krempl: 29C3: Planned GEMA alternative is on the right track at heise.de (accessed on December 31, 2012)
6. ↑ State supervision of the collecting societies ( Memento of the original of May 8, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . Online at dpma.de.  
7. ↑ ^{a b} Institute for Copyright and Media Law: Frankfurt District Court supports GEMA's presumption , dated August 28, 2012, GEMA's authority to exercise authority even for publications under a pseudonym.
8. ↑ ^{a b} Creative Commons. Who benefits from freedom? ( Memento of October 5, 2007 in the Internet Archive ). GEMA_Brief 59 from September 2006 on the Wizards of OS .
9. ↑ § 1 GEMA Authorization Agreement.
10. ↑ unencumbered / unencumbered acquisition . Article on lexexakt.de.
11. ↑ Schricker , Copyright, 2nd edition, before §§ 28 ff. Rn 63; Schmidt, WM 2003, 461, 464.
12. ↑ Gideon Gottfried: Is GEMA-free really GEMA-free? ( Memento of the original from May 2, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . Article requiring registration on Musikmarkt.de from April 24, 2013. 

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