Music law news

Sampling: definition and legal position

By in Acquisition of music rights, acquisition of rights in good faith, artist agreement, artist insurance, German law, Horak Attorneys at Law - Music Law, intellectual property law, music law, sampling Tag , , , , , , , ,

Is sampling music legal?

When a musician samples, he takes fragments from other people’s songs. Does he thereby violate copyright or is that freedom of art? The BGH has decided. Here an overview of the legal dispute from an article of the German https://www.tagesschau.de/inland/bgh-urheberrecht-101.html). In music, sampling refers to the process of using a part of an – already finished – sound or music recording in a new, often musical context. Nowadays, this is usually done with a hardware or software sampler, i.e., the selected sound sample is usually digitized and stored so that it can be further processed with audio programs.

Why have they been arguing about this in court for years? A german rapper, singer and music producer thinks to this day that he was allowed to simply take the “music snippet” into his song. Legally, the issue is the conflict between artistic freedom and the rights one has as a producer of a sound carrier. These are the so-called copyrights and ancillary copyrights: “The author of a sound record has the exclusive right to reproduce, distribute and make the sound carrier available to the public,” the Copyright Act states.

What can we now expect from the BGH’s ruling? With its decision, the BGH must implement the guidelines of the ECJ judges. After hearing the case in January, it does not look like the judges in Karlsruhe will simply “wave through” the rapper´s sampling. So the question remains whether the artistic sound sequence in the song is recognizable or not. To have this clarified, the BGH could refer the case back to the Hamburg Higher Regional Court. If Pelham loses, the case could even go back to the Federal Constitutional Court. After all, he won there in 2016. Either way, the principles laid down by the courts affect the hip-hop and music scene as a whole.

Musician, artists, writers: you know who to call. Horak Attorneys at law: your international law firm for music law.

What are pirate copies?

By in bootleg, copyright infringement, copyright law, intellectual property law, music law, pirate copy Tag , , , , ,

Bootlegs, forgeries and pirated copies

Piracy is the generic term for illegally produced copies.

Bootlegs are sound carriers with illegal concert recordings (also as video).

Falsifications are illegally produced sound carriers that look like originals but are not.

Making music in your flat without fighting with the neighbours in Germany

By in Horak Attorneys at Law - Music Law Tag , , , , , , , , , ,
Making music in your flat without neighbouring stress: is that possible in Germany?

As a matter of fact, the old-fashion prerequisite of a happy home is having the freedom of doing what you like, when you like, with whom you like. But from a legal point of you? Is it true? Are we free to do whatever we like?

The answer is the same: your freedom ends when mine begins. If your behavior is in some way causing a situation of distress for another person (it could be the neighbour, the flatmate etc.), your freedom could become a “torture” for someone else and this should be legally regulated. More precisely: you all know the problem: good vibes, a group of friend, a nice dinner listening to some music. Or you have just bought a new piano and want to practice every day. Is it allowed? How loud? Till when? Is there a legal regulation for this? Of course!

Practising a musical instrument shall not be prohibited even in rented flats. The Higher Regional Court (OLG) Hamm has made it clear.There is a general right to make music (OLG Hamm, Ref. 15 W 122/80) and even practising an instrument on Sundays is not considered a disturbance of the peace per se.

As a rule, a maximum of two hours of music-making per day should be tolerated. However, there are different court rulings on house music. The permitted practice time varies depending on the court decision – for the piano, for example, from one and a half to three hours a day.

Every situation is different. No legal dispute is the same. Details matter. Your legal representation matters. Contact us.

 

 

“Musikgutachter”: The legal role of music experts in Germany

By in Horak Attorneys at Law - Music Law Tag , , , , , , ,

Music experts have significant influence on the decisions in almost all legal proceedings. In some cases, several expert opinions are requested in order to have an objective framework of the situation; it could also happen that different experts can contradict each other. In the last years, there has been an increasing “professionalisation”. In the beginning, expert opinions were still personal and sometimes methodologically questionable. Over time, experts with a certain familiarity with case law and legal vocabulary were chosen from the tribunal/legal structure. Increasingly, other methods besides the purely descriptive analysis of works and the comparison of notes from the fields of music psychology and music sociology started finding their way into expert opinions protocols. Today, the demands on music experts are correspondingly high. Sometimes several experts are commissioned to clarify technical questions of evidence.

You can avoid arising music law conflicts if you commission a forensic music analysis of your production for legal certainty and quality control as a preventive measure before publication. You will receive an objective analysis of whether your work maintains the required distance from the comparative work of music.

Our law firm works daily with cases of music plagiarism, distortion, adaptation, quotation, intellectual property protection. Get in touch with us. Our experts are here for you.

Mrs. Anna Umberg is one of our copyright law specialists. Book an appointment with her. 

True or False – Music Law

By in Acquisition of music rights, artist agreement, artist insurance, Band Take Over Agreement, composition right, copyright infringement, copyright law, German law, Horak Attorneys at Law - Music Law, intellectual property law, license rate, music law Tag , , , , , , , ,

True or False – Music Law:

Quick Check on the most Frequent Asked Questions of the internet

Are self-composed songs automatically protected by copyright?
German copyright law automatically protects music or sheet music and song lyrics.

What has copyright to do with music?
The musical work is protected under copyright law as soon as it is created, i.e. when the song is played for the first time at rehearsals or when the lyrics and melody are written down.

Has copyright on music a period of expiration?
Copyright on music lasts for 70 years after the death of the author. After that, the statute of limitations expires and it is considered to be in the public domain.

Strangers are using a self-composed song without my permission. What shall I do?
In this case, there may be a copyright infringement. It is possible to take legal action against this. Do not waste time. Contact a lawyer immediately. 

What about YouTube? Can I download music for free and sell it online? 
The answer is definitely NO. Illegally downloading music from YouTube and eventually selling it or using it without permission is a crime and it can be punished legally. Anyone who uploads a self-composed song on Youtube is considered to be the author. This means that the copyright law for music applies. In addition, anyone who includes other people’s music in a video may be committing a copyright infringement. Therefore, it should be checked beforehand who the author is and whether permission is necessary. A lawyer could definitely help you clarify every question you have. 

Copyright infringement only occurs if I commercially exploit the music, right?
NO, that is not correct. If you use pieces of music protected by copyright law and offer them for free download on your website, this is also an infringement. If unauthorised distribution takes place, it is irrelevant whether it is of a commercial nature or not.

So, let a legal check your conditions before making the wrong move. Copyright Infringements are

legally punishable. 

 

“Urheberrechtsreform” – When digitalizations means a copyright-law reform

By in Acquisition of music rights, acquisition of rights in good faith, artist agreement, artist insurance, Band Take Over Agreement, copyright infringement, copyright law, Horak Attorneys at Law - Music Law Tag , , , , , , , , ,

The New Music Copyright Reform enters into force on June 7, 2021

The law concerning the new EU copyright directives was published in the Federal Law Gazette (Bundesgesetzblatt) on June 4, 2021 and the new so-called Copyright Service Providers Act (UrhDaG), i.e. the implementation of the controversial Article 17 of the EU Directive (formerly Article 13), will then come into force on August 1, 2021.

Background of the reform:

As a sign of our constantly changing society, social media platforms are also in an unremitting search for the best contents. Copyright law is constantly confronted with digital changes and without a constant adaptation of our legal system would be difficult to keep the media laws contained. For this reason, a copyright reform was passed this year to meet the requirements of an increasingly digitally active knowledge society.

The Reform:

According to the reform, digital platforms will be held liable for copyright infringements on their channels and have to acquire the necessary licenses. Representatives of the online community must accept that there is an enforceable copyright on the Internet and this must be accepted in the future of copyright law. Authors and rights exploiters, in turn, must come to terms with the fact that the German government has defined a “minor use” that is permitted without compensation for copyrights: fifteen seconds in image and sound, 160 characters of text, and image excerpts of up to 125 kilobytes are free.

Criticisms:

This does not sounds like “too much”, but  just the fifteen seconds is too much in the age of Instagram and TikTok for musicians, music publishers, filmmakers and film rights holders of the free. These fifteen seconds are enough to play out the decisive scene on TikTok for instance and this has been the reason for criticism and resistance form the side of musicians and music publishers. These letters will in particular not give up really soon, even once the new copyright law has come into force.

If you wish to know more about it, go check out the official website of the German “Bundesregierung” and if you habe questions, do not hesitate to contact us at any time.

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What is a Band Take Over Agreement?

By in artist agreement, Band Take Over Agreement, music law Tag , , ,

The record company licenses the band to a label/ producer/ artist.

In most cases, a chargeable advance on the expected license income is paid.

The record company has no artistic co-determination in the recordings.

The exploitation period and contract territory are usually limited.

You can find a sample contract of a tape transfer contract here.

Is acquisition of rights in good faith under German music law lawful?

By in acquisition of rights in good faith, artist insurance, intellectual property law, music law Tag , , , ,

Unlike physical property, intellectual property does not involve the acquisition of rights in good faith (Gutgläubiger Rechteerwerb).

The consequence of this is that a label/sound recording producer can have the existence of the rights chain secured by the producer with corresponding artist letters (artist insurances).

What is an artist agreement?

By in artist agreement, license rate Tag , , ,
Artist contract by which an artist is signed exclusively with a record label/label/producer for a certain period of time (usually one to three years). The artist’s contractual partner finances the recordings in advance and is usually granted a large conceptual and artistic right of co-determination, with a rather low license rate for the artist.

Hamburg Higher Regional Court – Music Law

By in composition right, copyright infringement, copyright law, German law, Horak Attorneys at Law - Music Law, music law Tag , , , , , , ,

Decision of the 11.10.2018, 5 U 57/15

What if you decide to write a music album… and someone else decides to publish the same music you have just written? Is it just a case? Did they copied you? What does the law says about these kind of legal disputes?

In detail:

The author of a music work X decides to sue the author of the song Y, because the music is alleged to be copied from the pre-existing work X. This is

This is a real case that the OLG Hamburg solved with a strong and firm tribunal decision.

The Hamburg Regional Court dismissed the case. Yes, you read that right. In fact, it is true that the X work of music own the right of protect ability, however, the composition of the Y music had minor deviations. The possibility of double creation was thus given. It could not be proved that the protectable guitar melody was taken over from the pre-existing work.

The second expert of the Court of Appeal referred to the frequent occurrence of the chord sequence (Turnaorund) and that the guitar figures could easily be derived from finger exercises. A double creation was therefore very likely.

Are you interested in this case? Do you have questions? Don’t waste time! CONTACT US. We are here for you.