German Collection society cannot licence ‘Grand Right’ in scenes from Disney musicals

September 2008

Live events industry, music publishing
File no.: I ZR 204/05

A German concert promoter, Ulrich Gerhartz (Stimmen der Welt Musikmanagement und Veranstalungs Gmbh) , who staged a show which contained excepts from a number of Disney musicals has been held liable for copyright infringement. The “The Federal Court of Justice (Bundesgerichtshof, BGH) decided that the performance of the various indentifiable pieces from different musicals could be considered as a “dramatic performance” under German Copyright Law (Urheberrechtsgesetz). The claimant, Disney Enterprises Inc., owns of the exclusive right of use and performance of the musicals “Beauty and the Beast”, “The Hunchback of Notre Dame”, “Lion King” and “Aida”. Disney sued a German concert promoter who had staged several shows under the title “The Musical Starlights of Sir Andrew Lloyd Webber and the Disney Musical Productions”. Both the Regional Court and the Appeal Court in Frankfurt decided in favour of Disney. The Federal Court of Justice has now dismissed the final appeal of the concert promoter. Under German law an author or other copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German performing right organisation. As in the UK the owner reserves the rights to stage performances of musical shows (the so called ‘Grand Right’) – but there has been a debate of the extent of the rights assigned to GEMA, especiallya s the business of musicals had become very profitable worldwide. The question for the court to decide was whether it was allowable to perform excerpts of a musical by merely paying the statutory licence fee to GEMA (in the UK 3% of box office is payable to the PRS for using music) – or whether the copyright owner’s permission was required (including an extra fee). The Federal Court of Justice decided that a dramatic performance takes place when “a meaningful development of a story line” is identifiable. If only elements of a story line or of a piece of music are strung together without any context, then this cannot be considered to be a dramatic performance. It is not relevant whether the development of the story line could be understood by the audience. The Court held it to be sufficient that the audience could identify a single element of the story line, such as a scene of the work. These requirements were met in the Disney case. In this case some of the key scenes were reproduced and several of Disney’s most famous songs were arranged with appropriate costumes and stage design and this resulted in the audience being able to recognise the complete work and can therefore be considered to be a dramatic performance under the terms of the Copyright Law. Copyright owners will now be able to stop shows containing recognisable excepts from their works being put on without their permission.

Our thanks to the IPKat – who in turn thank to Dr. Robert Harrison at 24IP Law Group – please see and our thanks to Birgit Clark for this link

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