Music track
A music title (in the context mostly just title ) is the work title of a musical work under which it is published (published) and is included in hit parades and discographies . Additional information can also be added to the main title in a subtitle . The music title does not differentiate a piece of music according to its origin, but rather according to its content and texture. The term music title is sometimes used for the musical work itself (“the titles played on the radio”).
General
Not only the musical works themselves, but also their work titles can enjoy copyright protection. A title concisely describes the content of a piece of music and separates it from other works in order to avoid confusion or misuse. It represents the work content reduced to a minimum. It may therefore be necessary to protect this work title as well.
Title protection can be guaranteed in four ways, namely through trademark law , competition law , general civil law ( § 12 BGB), but also through copyright law . A prerequisite for protection by copyright law is that the title of a work is a partial service that can generally be protected by copyright. The established case law considers the possibility of copyright protection of titles to be generally permissible, but restricts the fact that a title does not normally have the necessary individuality and originality, as it usually consists of only a few words and is a short symbol for the musical work itself. Copyright is therefore unsuitable for protecting a title, so that title protection under trademark law is more effective, particularly in commercial transactions. In the event of unpleasant competition, competition law can serve as a means of defense.
Legal Aspects
In principle, a trademark right to a music title arises with the publication of the work. Publication is by § 12 of the Copyright Act, the "public disclosure", ie the sale of recorded music , their public performances in radio and television or in the Internet by offering the downloads in the way of music-on-demand . Then an exclusive right arises for both the work and its title. There is a genetic accessory between the piece of music and its title ; the two are initially inextricably linked. Accordingly, there could only be a likelihood of confusion between two works if they are on the market under their title. However, both jurisprudence and prevailing opinion are of the opinion that the object of protection of Section 5 (1) and (3), Section 15 of the Trademark Act is the title and not the work. However, it is also possible that the same musical work appears under several titles, which do not suggest that they are based on a uniform musical work. So the world hit The Lion Sleeps Tonight was previously called Wimoweh and in its original Mbube . Since 1997, case law has required that the announcement of an as yet unpublished work must immediately precede its publication.
In order to protect the music title even before it is published (e.g. during the ongoing music production ), the right to so-called early work title protection can be made known through a title protection notice. This advertisement has - for a limited time - the same effect as the publication of the work. The planned work must, however, come onto the market within a “reasonable period”, otherwise the earlier work title protection will expire. The appropriate period depends on the type of work (six months for phonograms).
Title protection notices can be published in the title protection notice and title protection journal (both advertising papers) in accordance with Section 5 (3) of the Trademark Act for a fee. The scoreboard, published since 1991, is sent to the public free of charge; this includes sound carrier producers or radio and television broadcasters. There is no authority or other institution for registering title protection.
Requirements for a music track
In order to be worthy of protection, a title must have a minimum of distinctive character , so-called distinctive character. Distinctive character in the context of work title protection refers to the suitability of a title to distinguish one work from another. A music title has the function of a means of individualization, analogous to the book title. Without distinctive character, the author has no defense claims against third parties who choose the same title ("love song"). The novelty of a word combination does not in itself constitute a sufficient distinctive character. Rather, a designation is to be refused registration as a trade mark due to the lack of any distinctive character if it has a descriptive conceptual content that is easily understood as such for the services in question and without any ambiguity. If a third party uses the protected music title without authorization and this creates a risk of confusion, the owner of the title of the work can claim forbearance.
Title rights abroad
Musical works, in particular, are sold internationally, so it is common practice for a song to be published on a sound carrier at the same time in other countries with different copyright regulations. In the UK, a title can in most cases be incorporated into another work as part of a protected work without being charged with substantial acquisition (16 (3) (a) of the Copyright, Designs and Patents Act 1988) . There are seven hit parade notes from the music title I Need You , without the underlying musical works being identical. In the USA, musical works including the words accompanying them are protected (17 USC § 102 (a) (2)). The title is automatically protected with the musical work.
In general, the international conflict of laws applies in such cases with foreign contacts. Then the question arises whether international German private law applies to a musical work produced in Germany .
Others
In terms of copyright, the music title and the piece of music it plays in abbreviated form must be strictly separated, while the musical work is often referred to as a music title in colloquial language. There is also a corresponding copyright separation for book titles and film titles .
Individual evidence
- ↑ BGH WRP 1997, 1181, 1183
- ↑ Jan Görden, Pre-preferred work title protection , 2009, page 187
- ↑ BGH GRUR 2002, 1083, 1084 - 1, 2, 3 im Sauseschritt
- ^ BGH GRUR 2003, 440, 441 - Winnetou's return
- ^ BPatG, judgment of July 29, 2008, Az .: 27 W (pat) 17/09 - Soul in the City
- ^ Jan Klink / Edward Geldard, Titles in Europe: Trade Names, Copyright Works or Title Marks? In: EIPR 2004, p. 290 ( Memento of the original dated October 2, 2015 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.
- ↑ David Roberts (Ed.), British Hit Singles , 2000, p. 519
