Instrumentals are protected by copyright

Copyright in music: a specialist lawyer will answer your questions

We worked with the specialist lawyer for copyright and media law, Dr. Severin Müller-Riemenschneider, conducted an interview and cleared up widespread half-truths and false assumptions. Find out here about the current legal situation, for example in the sampling process, the covering of music and situations in which copyright still applies.

Answers to copyright: Performing and distributing music with legal certainty is the topic of this interview. Find out the most important things about sampling, cover songs and much more now!

From Felix Baarß

Music - Copyright and More - Content

Copyright and the current legal situation

For the following interview, we were allowed to pound a specialist lawyer for media law with many questions about the current legal situation in Germany. The questions come from forums, among other things, as well as from letters that have reached us. The main topic is copyright law. When is there a risk of violating the law and what protection does this provide?

Dr. Severin Müller-Riemenschneider is, among other things, a specialist lawyer for copyright and art copyright law as well as media law. He has been advising private individuals and companies on these and other questions via Media Kanzlei Frankfurt since 2014. He is also a lecturer or speaker at various German universities, academies and institutes. Dr. Müller-Riemenschneider is still responsible for numerous specialist articles and is regularly available in interviews for questions such as those in this article about copyright.

The information in this article relates to the legal status of April 2018. Detailed legal advice in specific cases can only be provided by specialist lawyers such as Dr. Severin Müller-Riemenschneider.

Most important - copyright: performance & distribution of music

1. A recorded song is similar to a song that has already been released. But this new song is not a copy. Who now decides whether this is an alleged copy?

The copying or reproduction of musical works without the consent or the granting of rights of use by the authorized person regularly constitutes an act of infringement, since songs are fundamentally protected as musical works according to Section 2, Paragraph 2 of the Copyright Act.

When assessing whether it is a "copy", a distinction is made between processing requiring consent and so-called free use, which does not require the consent of the author. In principle, if the old work is used freely, it must fade to such an extent that it can hardly be recognized. However, if the music is based on a melody from an old song, the so-called rigid melody protection according to § 24 II UrhG applies. There is hardly any free use for works of music.

In addition, double creation is generally possible in copyright law. However, it is regularly assumed that if one work is similar to another and the author of the later work could have taken note of the other work, he was inspired by this. A judge who would have to decide in the event of a dispute whether there is a copyright infringement, i.e. a copy in the sense of the question, would then assume that it is a non-free processing and not a double creation.

Note: There is hardly any free use for musical works. In case of doubts about a double creation of a work, the unfree processing would be presumed in court.

2. Can I play music in public, including notes from well-known songs? (Street musician, theater performance, ...)

Basically, the public performance of music is a reproduction, § 16 UrhG and public reproduction as a performance right, § 19 II UrhG. The term “public” refers to the group of people for whom the work can potentially be received. In the case of street music, this is an unlimited group of people. If the necessary rights of use have not been obtained for these actions, there is fundamentally a copyright infringement. However, such »violations« are not regularly prosecuted.

3. As a DJ, can I upload my own sets to SoundCloud and YouTube? What has to be considered?

The uploading of works to platforms on the Internet represents a public access, §19a UrhG. The right to make the work available to the public is the right to make the work available to the public by wire or wireless in such a way that members of the public can perceive it from the places and at the times of their choosing. Only the author or authorized user has this right. Without a corresponding permission, a copyright infringement is to be seen in it.

In terms of copyright, a DJ set can be a compilation of several individual songs or a MashUp, i.e. a new creation through the use of many small components of different songs. In the case of the latter, reference should again be made to the so-called rigid melody protection. After that, it is sufficient if the tone sequence that has been removed is protected by copyright and recognizable in the new work. By uploading to SoundCloud or YouTube, you also accept the terms of use. In these, the uploading user assures that the works are free of third-party rights, so that contractual claims of the platform against the user would also come into consideration should the terms of use be violated.

4. I offered a song for free download. One person has made use of it and is now using parts of it commercially. Is there a handle against it?

Yes. As soon as your songs are not used in accordance with your rights, you are entitled to injunctive relief, compensation and information claims against the infringer, §§ 97ff. UrhG.

In the provision for free download, if interpreted according to the objective recipient horizon, only consent to private use can be seen. A right to process, i.e. the removal of parts, is not to be seen in the free offer, as long as you do not expressly communicate this otherwise. Likewise, there is no consent to be seen in the offer for free download that the work may be commercially exploited by third parties. After all, the exploitation constitutes a copyright infringement.

The principle in copyright law is that in case of doubt, the rights remain with the author as far as possible (transfer purpose concept).

Copyright and copyright law

5. What is protected by copyright?

The creative, perceptible form of an individual idea; the so-called work (§ 1 UrhG).

Copyright protects all works of literature, science and art. The prerequisite for a work here must be that it is a personal creation. The creation must have a certain level of design. A work has sufficient individuality if it has at least a sufficient degree of creative idiosyncrasy. The principle of the small coin applies here, according to which a small spark of creativity should be sufficient for a work to be created. The work must also have a perceptible form.

In addition to works, copyright also protects economic or cultural services and investments.

6. When is copyright infringed?

A copyright infringement occurs when a person carries out an act of infringement without the permission or contractual rights of use granted by the person entitled.

With the creation of a work, the author has the right to use his work in a physical and non-physical form. Likewise, the creation of a work creates a certain connection between the author and his work, from which the moral right can be derived. This includes the right of publication, naming and non-distortion rights. Uses without consent in the aforementioned form represent acts of violation.

In individual cases, an act of use can also be privileged by a limitation regulation.

Cover song of pieces of music

7. Do cover versions have to be paid out to the original artist? Regardless of how successful the cover is.

If there is a processing requiring approval according to § 23 UrhG or an act of infringement according to §§ 15 ff. UrhG, the rights of use for the cover versions must be acquired by the rights holders. The amount of the license fee is generally subject to private autonomy. If an infringement has already occurred, the rights holder can choose between the three-fold damage calculation option in accordance with Section 97 (2) UrhG.

8. Can I cover a song for which the author is a GEMA member?

Cover versions are reinterpretations of existing songs. Only the pitch of the voice and existing instruments are changed, the text and composition are usually not edited. In such cases, it is a matter of copyright infringement if a license is not obtained from GEMA in advance. The Society for Musical Performance and Mechanical Reproduction Rights (GEMA) represents artists in exercising their exploitation rights.

If changes are made to the melody and text, there could also be a processing, so that the consent of the author must be obtained from Gema in addition to licensing.

Matching: Difference between GEMA and GVL »

9. In what form can a song be covered? When do I make myself liable to prosecution?

In order for a song to be covered, no third party copyrights may be infringed. Due to the rigid melody protection, this is only unproblematic if it is a work in the public domain, i.e. the author has been dead for 70 years or appropriate rights of use for the cover have been obtained.

Another question arises with so-called "sampling". To this end, the BVerfG has made a landmark decision according to which the use of samples without the consent of the sound carrier manufacturer is permissible under copyright law if there is only a minor interference with its ancillary copyright without significant economic disadvantages (BVerfGE 142, 74). The starting point was the use of a two-second soundtrack as a repeated rhythm figure ("loop") from a song by the band Kraftwerk. In the demarcation between the exploitation interests of the authors and the freedom of artistic creation, the exploitation interests of the author can be withdrawn in the event of a minor interference. Furthermore, "sampling" proved to be a style-defining element in hip-hop and should not be disregarded in such a weighing up.

Theoretically, the violations described above are also regularly criminal offenses within the meaning of § 106 ff. UrhG. In the private sector, however, such violations are usually only prosecuted under civil law.

Our podcast (no legal advice): Covering other bands - is that allowed?

10. What should you watch out for when uploading videos with cover songs on social networks such as Facebook & Co.?

If videos are published on social networks such as Facebook or YouTube that represent a copyright infringement, the platform operator is liable as the interferer. A disruptor is someone who, in the opinion of the BGH, is not a perpetrator or participant, but who willingly and causally tolerates the violation. With this in mind, when posting videos of cover versions that represent a copyright infringement, the Facebook platform becomes a disruptor the moment the infringement is pointed out. Facebook therefore also has an interest in preventing copyright violations and can block users in the event of violations.

In order to avoid such a blockage due to an infringement of copyrights as a user, the aforementioned principles must be taken into account. From a copyright point of view, cover versions are usually copyright infringements if the user does not license the necessary rights with the authorized person (GEMA, author or owner of the rights of use) in advance. If the corresponding rights have not been obtained in advance, I can only urgently advise against publication, as this regularly constitutes a copyright infringement. Something different applies when it comes to works in the public domain.

We would like to thank Mr. Müller-Riemenschneider of the Media Kanzlei Frankfurt »for the detailed and informative interview.