• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

Kraftwerk, sound sequences, copyright – The Neverending Story now at the ECJ

18. September 2023
in Copyright
Reading Time: 4 mins read
0 0
A A
0
copyright
Key Facts
  • The Federal Court of Justice refers questions on the definition of pastiche to the ECJ for clarification in copyright matters.
  • The plaintiffs are members of the music group Kraftwerk, who released the song "Metall auf Metall" in 1977.
  • Defendants sampled two seconds from "Metall auf Metall" for the track "Nur mir", which led to a legal dispute.
  • The BGH initially dismissed the action and referred the case back for a new decision.
  • The proceedings revolve around the definition of pastiche in the context of sampling and copyright protection.
  • The relevant question is whether the use for a pastiche requires an intention on the part of the user or simply recognizability.
  • The case could have far-reaching implications for artistic freedom and the rights of authors.

The German Federal Court of Justice has decided to refer questions to the Court of Justice of the European Union for clarification of the copyright concept of pastiche.

Content Hide
1. Facts:
2. Previous process history:
3. Decision of the Federal Court of Justice:
3.1. Author: Marian Härtel

Facts:

The first plaintiff and the former second plaintiff, who died on April 21, 2020 and whose legal successor is the current second plaintiff, were members of the music group “Kraftwerk”. The latter released a record in 1977, on which the musical piece “Metal on Metal” can be found. Defendants 2 and 3 are the composers of the title “Nur mir” (“Only Me”), which defendant 1 recorded with singer Sabrina Setlur on recordings released in 1997.

To produce the title, the defendants had electronically copied (“sampled”) two seconds of a rhythm sequence from the title “Metal on Metal” and added it to the title “Only Me” in continuous repetition.

The plaintiffs regard this as an infringement of their rights as producers of sound recordings and of the copyright of the first plaintiff. They have filed a claim against the defendants for an injunction to produce and market sound recordings with the recording “Nur mir”. They also demanded a declaration that the defendant was liable for damages, the provision of information, and the surrender of the sound recordings for the purpose of destruction.

Previous process history:

The district court upheld the action. The defendant’s appeal has been unsuccessful. On appeal by the defendant, the Federal Court of Justice reversed the judgment on appeal and referred the case back to the Higher Regional Court for a new hearing and decision.

The Higher Regional Court again dismissed the defendant’s appeal. The Federal Court of Justice rejected the defendant’s renewed appeal. The Federal Constitutional Court overturned the appeal judgments and the second appeal judgment and referred the case back to the Federal Court of Justice. The latter then referred questions to the Court of Justice of the European Union on the interpretation of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society and Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property, which the Court answered in its judgment of July 29, 2019.

By the third appeal judgment, the Senate reversed the decision of the Court of Appeal on the appeal of the defendant and referred the case back to the Court of Appeal for a new hearing and decision. The Court of Appeal then amended the judgment of the Regional Court to the effect that the defendants were ordered to provide information on the number of sound recordings of the title “Nur mir” produced and/or delivered between December 22, 2002 and June 7, 2021 and to surrender copies of these sound recordings for the purpose of destruction, while dismissing the further action, and that their obligation to pay damages was established in this respect.

The Court of Appeal allowed the appeal insofar as it found to the detriment of the plaintiffs with regard to the claims asserted from June 7, 2021. In their appeal, which the defendants request be dismissed, the plaintiffs continue to pursue their claims asserted in the action from June 7, 2021.

Decision of the Federal Court of Justice:

The Federal Court of Justice has now suspended the proceedings again and referred questions to the Court of Justice of the European Union on the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

The appeal is successful if the Court of Appeal wrongly assumed that the claims asserted by the plaintiffs are excluded as of June 7, 2021, because the adoption of the rhythm sequence from the title “Metal on Metal” by way of sampling is a permissible use for the purpose of pastiche pursuant to Section 51a sentence 1 UrhG in the version applicable as of June 7, 2021, so that there is no infringement of the ancillary copyrights asserted by the plaintiffs as producers of sound recordings or performing artists and of the copyright of the first plaintiff.

This is what matters in the dispute because the musical piece “Nur mir” does not meet the requirements of a caricature or parody of the musical piece “Metall auf Metall” for lack of expression of humor or mockery (see BGHZ 225, 222 [juris, marginal no. 63] – Metall auf Metall IV).

In the view of the Federal Court of Justice, the first question is whether the restriction on use for the purpose of pastiches within the meaning of Art. 5 para. 3(k) of Directive 2001/29/EC is a catch-all provision in any case for an artistic treatment of a pre-existing work or other object of reference, including sampling, and whether restrictive criteria such as the requirement of humor, imitation of style or homage apply to the concept of pastiche.

The pastiche barrier could be understood as a general barrier to artistic freedom, which is necessary because artistic freedom cannot be given the necessary scope in all cases solely due to the immanent limitation of the scope of protection of exploitation rights to a use of works and performances in a recognizable form (cf. ECJ, GRUR 2019, 929 [juris para. 31] – Pelham et al.) and the other barrier regulations such as parody, caricature and quotation in particular. The technique of “electronic copying of audio fragments” (sampling) at issue here, in which a user takes an audio fragment from a sound carrier and uses it to create a new work, is a form of artistic expression that falls under the freedom of art protected by Art. 13 EU Charter of Fundamental Rights (ECJ, GRUR 2019, 929 [juris marginal no. 35] – Pelham et al.; on Art. 5 (3) sentence 1 GG cf. BVerfGE 142, 74 [juris marginal no. 89]).

The rights of authors, phonogram producers and performers under Art. 2 and 3 of Directive 2001/29/EC enjoy intellectual property protection under Art. 17 para. 2 EU Charter of Fundamental Rights. The objective of an appropriate balance of rights and interests is supported by the principle of equal treatment set forth in Art. 5 Par. 5 of Directive 2001/29/EC takes into account the “three-step test”, the requirements of which are met according to the findings of the Court of Appeal.

Next, according to the Federal Court of Justice, the further question arises as to whether the use “for the purpose” of a pastiche within the meaning of Art. 5 para. 3(k) of Directive 2001/29/EC requires a finding of an intention on the part of the user to use an object of copyright protection for the purpose of a pastiche, or whether the recognizability of its character as a pastiche is sufficient for a person who is aware of the referenced object of copyright protection and who has the intellectual understanding necessary to perceive the pastiche.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: billDamagesEuFederal constitutional courtFederal courtJudgmentLawsuitTestUrheberrecht

Weitere spannende Blogposts

Between player rights and provider obligations – dealing with blocked gaming accounts

Between player rights and provider obligations – dealing with blocked gaming accounts
19. November 2023

Introduction As a lawyer with a history in the gaming sector, I often come across cases involving blocked gaming accounts....

Read moreDetails

Stumbling blocks you should be aware of when reading a contract

Stumbling blocks you should be aware of when reading a contract
4. January 2023

Why is it important to read and understand contracts? Contracts are an essential part of everyday life. They help us...

Read moreDetails

OLG Munich: Deliveries to Facebook possible in German

OLG Munich: Deliveries to Facebook possible in German
13. November 2019

The problem of effective delivery If you want to enforce something for clients on Facebook or Instagram, but also on...

Read moreDetails

Red, Red, Red blooms only the savings bank…

23. February 2023

After almost six years of litigation, the savings banks have prevailed against the Santander banking group at the Federal Court...

Read moreDetails

Digital signatures: legal basis and technical possibilities

Digital signatures: legal basis and technical possibilities
22. May 2024

Introduction: The importance of digital signatures in the modern business world Digital signatures have gained enormously in importance in recent...

Read moreDetails

Adblock II decision: Reason is there

Adblock II decision: Reason is there
7. November 2022

The Federal Court of Justice has published the full reasoning of the Adblock II decision ( I ZR 154/16 )....

Read moreDetails

Cologne Higher Regional Court on secret video recordings of Wallraff

Cologne Higher Regional Court on secret video recordings of Wallraff
7. November 2022

Covertly obtained sound and film material may give rise to a claim for injunctive relief, even if it is not...

Read moreDetails

Artificial Intelligence and Copyright – A View Beyond Game Development

Artificial Intelligence and Copyright – A View Beyond Game Development
21. June 2023

Introduction In a previous article, "Artificial Intelligence and Copyright: Implications and Risks for Game Developers," I discussed the legal challenges...

Read moreDetails

Establish a blockchain limited liability company? Does that

Establish a blockchain limited liability company? Does that
1. February 2023

What is it all about? As we have often read here on the blog, blockchains (no matter from which provider...

Read moreDetails
lawyers are advising clients about real estate law 2021 08 27 09 31 04 utc

Bundesurlaubsgesetz (BUrlG)

10. November 2024

Historische Entstehung und Rechtliche Grundlagen Das Bundesurlaubsgesetz wurde am 8. Januar 1963 verkündet und bildet seitdem die fundamentale rechtliche Grundlage...

Read moreDetails
boersengang ipo

Initial public offering (IPO)

29. March 2025
force majeure

Limited partner

10. November 2024
lawyer is providing information about the client s 2022 10 06 05 57 37 utc

Pflichtenheft / Lastenheft

26. June 2023
Kryptowert

Kryptowert

30. June 2023

Podcast Folgen

8315f1ef298eb54dfeed2f5e55c8b9da 1

First test episode of the ITMediaLaw Podcast

26. August 2024

First test episodeDear readers, I am delighted to present the first test run of our brand new IT Media Law...

4f3597d5481e0f38e37bf80eaad208c7

The IT Media Law Podcast. Episode No. 1: What is this actually about?

26. August 2024

Yeah, the first real episode with myself! In this podcast, we dive into the exciting world of IT law and...

AI in law: opportunities, risks and regulation – the IT Media Law Podcast Episode 3

AI in law: opportunities, risks and regulation – the IT Media Law Podcast Episode 3

24. September 2024

Welcome to the third episode of our podcast "IT Media Law"! In this episode, we delve into the fascinating world...

238a909c26a0302cbd4792cbd18e4922

Global challenges for start-ups – A legal guide

10. October 2024

This informative podcast offers a comprehensive insight into the legal challenges faced by start-ups when expanding internationally. The experienced lawyer...

  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung