Musical work (copyright)

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The musical work is in copyright a self-contained composition with or without text , below a certain song released was.

General

The musical work is not only the subject of investigation in musicology (→ main article: musical work ), but also in law in its special field of copyright (see also music law ). Jurists have also interfered in the theory of composition, because the melody is also a legal term . According to § 2 Paragraph 1 No. 2 UrhG, copyright expressly protects “works of music”. Copyright in turn understands a work to be personal intellectual creations (Section 2 (2) UrhG). Works of music make use of tones as a means of expression, whereby the term musical work is to be interpreted broadly. This includes works that are expressed through sounds generated by the human voice , musical instruments , sounds of nature or an animal, or electronically generated. It is not relevant whether a musical tone theory is adhered to. Free improvisation , in which composer and musician combine their functions, is also one of the musical works. It is also not necessary that the musical work before or afterwards in marks written or by recording in a recording studio was recorded. For the practice of copyright, however, these two aspects are relevant , especially when registering with a collecting society (such as GEMA in Germany ). According to case law, whether a musical work can be assumed is the responsibility of the public who are familiar with and open to music.

Melody as a legal term refers to any self-contained and ordered sequence of tones which, taken by itself, has a creative peculiarity according to § 2 Paragraph 2 UrhG and gives a musical work its individual character. It must express an individual aesthetic content. Parts of melodies are also protected if they themselves still have a sufficient creative height. In the musical field there is a wide scope for individual expressiveness, which makes the assumption of a double creation appear as an exception.

The sequencing of compositions or arrangements from existing sound recordings using a software sequencer (for example as MIDI ), i.e. the creation of an electronic notation of the works, is to be subsumed under copyright law, whereby the composer's copyrights are particularly affected.

species

A musical work with text is a so-called connected work according to § 9 UrhG, according to which an independent linguistic work is connected with a musical work for joint exploitation. Although there is no uniform work with its own copyrights in the linked work, there are obligations of loyalty between the composer and the lyricist at the level of contractual obligations , so that a hit text may not be combined with a new melody.

Musical works in case law

A person who creates a musical work is called a composer . The prerequisite is therefore the creation of a work of music within the meaning of Section 2 Paragraph 1 No. 2 UrhG. Such a creation only exists if the level of creation required under Section 2 (2) UrhG is reached or exceeded. In the case of musical works, of course, there are no high demands to be made of creative idiosyncrasy. According to this, it is sufficient if the composer's formative activity shows only a low degree of creativity. The creative achievement can result not only from the melody, but also from its processing, for example from the structure of the tone sequences, rhythm as well as from the instrumentation and orchestration. The overall impression resulting from the interplay of these elements is decisive. The required level of design can result from the overall impression, which is so decisive, even if the individual elements, taken by themselves, only show a slight degree of individuality, for example through the combination of common stylistic devices. On the other hand, the purely manual activity and the use of what belongs to the musical common property lie outside the scope of copyright protection.

The protectability of parts of the work must also be assessed according to these principles. Tone sequences or sound images that already have individual features due to their scope, their variety, the rhythm as well as the selection and composition are protected by copyright. Decisive for the assessment of the height of creation is the opinion of the public who are fairly familiar with musical questions and are open to them. Tone sequences that only consist of a few tones or chords, however, regularly lack the individuality required for protection under Section 2 Paragraph 1 No. 2, Paragraph 2 of the Copyright Act. Individual tones, acoustic signals , chords , pause signs , a rhythm or a certain harmony can not be protected . Tones and chords must remain free in the public interest, otherwise there would be an unacceptable hindrance to creative work.

Co-authorship, work connection

If at least two people work together in the creation of a work, there may be co-authorship ( § 8 UrhG) or a work association ( § 9 UrhG). Apart from pure instrumental music, this comes into question in particular if a songwriter creates a text which in turn is to be regarded as a work (Section 2 (1) No. 1 UrhG) and the composer's activity is exhausted in the composition. If music and text are combined in hits , then there is generally a work connection within the meaning of Section 9 UrhG. The same applies to other areas of vocal popular music . In the case of operas , operettas , musicals and similar works, a work association within the meaning of Section 9 UrhG is obvious. A typical case of a combination of works is also the song in which the text of one author is combined as a linguistic work (§ 2 Paragraph 1 No. 1 UrhG) with a musical work (§ 2 Paragraph 1 No. 2 UrhG) by another author. If both parts of the work are protected by copyright, the internal relationship between the composer and the lyricist is determined by the principles of society under civil law§ 705 ff. BGB).

In the USA , a song with the lyrics is protected under the specific work type “musical work”. If there are at least two authors working together with the intention that their contributions should merge as an inseparable unit, then they become inseparable components of a unified musical work. There is already a copyright unit of music and text here, which in Germany is only established through the law of obligations.

Delimitations

The composition is to be separated from the arrangement . In the case of an arrangement, a musical work is changed in its expression through musical design means, in particular through instrumentation but also reharmonization or modulation. On the one hand, jurisprudence only assigns a creative peculiarity to the classical arrangement if the arrangement goes beyond the purely technical application of musical teachings, on the other hand, simple but just protected intellectual achievements (so-called works of the small coin ) also reach the height of creation worthy of protection, which in case of doubt is to be checked according to musicological criteria. The arrangement is protected as creative processing according to § 3 UrhG and requires the consent of the arranger and / or his rights management for further processing and exploitation by third parties.

According to Section 24 (1) UrhG, the right of free use is only available to someone who plays a (already protected) tone sequence himself and thus actually reproduces it, so that the personal characteristics of the original work fade and take a back seat. However, if a new musical work is clearly based on an already protected melody, the consent of the rights holder is required in accordance with Section 24 (2) UrhG. This also applies to editing, for example, cover versions according to § 23 UrhG.

The supreme courts are already dealing with the legal question of the admissibility of sampling with regard to partial copies of third-party sound recordings. In its judgment of December 13, 2012, the BGH assumed that the unchanged use of excerpts from existing sound recordings by third-party producers was not permitted for own, new productions, even if only the smallest excerpts were used. The sampling of sound recordings from other parties is only permitted if the new work is so far removed from the sequence of notes that it is to be regarded as independent and it is not possible to play the sequence of notes itself. The decisive factor here is whether “a music producer with average equipment and skills is able to produce his own sound recording at the time of using the external sound recording, which is equivalent to the original when used in the same musical context from the perspective of the addressed traffic”. In the present case, from the point of view of the BGH, it was therefore possible not to use the original track , but instead to make an independent recording. However, the judgment of the Federal Constitutional Court was overturned by the Federal Constitutional Court on May 31, 2016 on the grounds that the decisions challenged with the underlying constitutional complaint would violate the complainants' right to freedom of artistic activity (paragraph 109 of the judgment).

protection

The musical work and its copyright protection are inextricably linked. A musical work is protected in Germany according to § 64 UrhG in favor of the composer and lyricist 70 years after the death of the author. This protection period has also been in effect within the EU since July 1995 and now in the USA (see copyright law ). During the protection period, only the authors are allowed to use and exploit (absolute protection), others must ask the author for permission for modifications (e.g. cover versions) in the event of publication ( Section 23 UrhG). After the deadline, the protected work is in the public domain .

See also

Individual evidence

  1. Manfred Rehbinder, Copyright , 14th Edition, 2006, Section 28, Paragraph 38.
  2. Ulrich Loewenheim , in: Gerhard Schricker, Commentary on the UrhG , 2nd edition 1999, § 2 UrhG Rn. 118.
  3. a b Artur-Axel Vandtke / Claire Dietz, Copyright , 2010, p. 68.
  4. ^ BGH NJW 1989, 386 - Fantasy.
  5. a b BGH GRUR 1988, 812, 814 - A little peace .
  6. BGH GRUR 1971, 266 - Magdalenenarie.
  7. BGH NJW 1989, 387, 398 - A bit of peace.
  8. Ulrich Loewenheim, in: Gerhard Schricker, Commentary on the UrhG , 2nd edition 1999, § 9 UrhG Rn. 10
  9. BGH GRUR 1968, 321, 324 - Hazelnut
  10. a b c BGH GRUR 1981, 267, 268
  11. BGH GRUR 1991, 533, 535, OLG Munich GRUR-RR 2002, 282
  12. BGH GRUR 1991, 533, 535
  13. BGH GRUR 1964, 326 - sub-publisher; OLG Frankfurt GRUR 2004, 144, 145
  14. BGH NJW 1982, 641 - Musikverleger III; NJW 1983, 1192 - Associated Works
  15. BGH GRUR 1982, 41, 42 - Music publisher III
  16. BGH GRUR 1982, 743, 744 - Associated Works
  17. "musical works, including any accompanying words" according to Section 102 (a) (2) Copyright Act
  18. ^ Legal definition in Section 101 Copyright Act
  19. Sebastian Schunke, The right to edit music and how it is exercised by GEMA , 2008, p. 63
  20. judgment of September 26th, 1980, Az .: I ZR 17/78 "Dirlada". BGH, September 26, 1980, accessed on May 3, 2017 .
  21. judgment of 01/24/1991, Az .: I ZR 72/89 "Brown Girl II". BGH, January 24, 1991, accessed on May 3, 2017 .
  22. ^ BGH, judgment of December 13, 2012, Az .: I ZR 122/11
  23. The use of samples for artistic creation can justify an encroachment on copyrights and ancillary copyrights. BVerfG, May 31, 2016, accessed on May 3, 2017 .