Tag law

Transferability of music copyright

By in Acquisition of music rights, acquisition of rights in good faith, artist agreement, artist insurance, Band Take Over Agreement, composition right, copyright infringement, copyright law, GEMA, German law, Horak Attorneys at Law - Music Law, intellectual property law, music law, pirate copy, sampling Tag , , , , , , , , , , , ,

Generally speaking, copyrights are not so easy to transfer or to sell: A composer cannot just decide to transfer the copyright of a musical work as such. This is also not possible by means of a contract. However, it is possible to grant others a right to use the work. To do this, a licence agreement is strictly necessary. This must contain the most important information about the scope of use and the remuneration.

German copyright law lasts until 70 years after the death of the author. This means that as long as the composer is alive, the copyright is his and his alone. After his death, it passes to his heirs for a total of 70 years. Only then is it considered “in the public domain”. Then anyone may perform the piece of music in public without permission or remuneration.

Do you have any other question? Make sure to fill out our contact form and we will be glad to help you!

 

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.

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. 

 

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.

Value Added Taxes – No Say No Pay?

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Karlsruhe Regional Court (Ref. 14 0 31/20 KfH)

Has it already happened to you that the costs estimated from the seller is much less than the actual final price? 

Stop wrapping your head around it and seek for legal help!

The Case

Mr. F. becomes clear information from his car repair shop: The flat-rate price for the repair of the damage is going to be 700 euros. When the customer picks up the car, however, 833 euros are printed on the invoice.

Reason for this unfortunate misunderstanding is that the employee of the car repair shop only told his customer the net price of his service, absolutely not mentioning the value added taxes that were going to incur. 

Mr Falkenberg decided to take legal action, as he previously refused the offer of another garage, which would actually have been cheaper, only because he thought that he was going to pay only 700 euros. 

Tribunal Decision

The Karlsruhe Regional Court decided that consumers in Germany must always be able to see immediately and transparently the actual price of goods and services they are going to purchase, always including VAT. It is not permissible to add VAT on the invoice without informing the customer in advance. 

In case the seller (or car repair shop owner) does not comply with this regulation, it could face an administrative fine of up to 250,000 euros.

So, be careful with your business! We advise all kind of businesses. Contact us. 

Life Insurance Laws

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Going home from work is not automatically covered by life insurance

Federal Social Court of Kassel (Case B 2 U 9/19 R)

Sometimes life does not go as planned. The case we are reviewing with you today is unfortunately concerning the tragic car accident of Hannes Hanke.

The Case: 

Mr. Hanke used to work as a chemical worker in his hometown in Germany. One day, just like many others, leaves Mr. Hanke his workplace, leaves the machine running, doesn’t say goodbye to his colleagues and doesn’t log off at the working hours file record. He usually calls his wife before going home, but he doesn’t do that that day either. He gets into his car and goes on the usual and direct way home. In doing so, his car gets caught in oncoming traffic and Hannes Hanke suddenly loses his life in a car crush. His widow is now claiming survivor´s loss benefits from the statutory life insurance. However, the employers’ insurance association rejects her claims as the accident was according to the records on his way home and not at his actual working place.

Ms. Hanke decided then to go to court and let the judges at the Federal Social Court in Kassel decide. 

The Tribunal Decision:

They took the following decision: An accident on the usual way home from work is not always covered by the statutory accident insurance. Rather, it must also be clear that the employee actually wants to drive home. This cannot be established in the present case. After a normal working day, it can be assumed that the employee does indeed want to go home. However, this does not apply to the completely atypical procedure that Mr. Hanke had on the day of his death. 

So, Ms. Hanke unfortunately had not received her insurance benefits. 

What do you think about this case? Do you have questions on German insurance law? 

Get in touch with us. We can help. 

To be, or not to be… a lawyer

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Tribunal Decision – BWLH Reviews

Study Law in Germany: Become a “Rechtsanwalt”

September has come to an end, and as we all know, October is in Germany the month of new starts. The winter semester at all German universities is slowly beginning and while experienced students get back to college with a couple of preoccupations, young and fresh teenagers make their first step in a completely new world made of libraries, lecture halls, books, exams, degrees and new friendships. 

How many of them, are approaching such a long path in order to work in the German legal structure as lawyers, attorneys, judges or notaries? According to the Website www.talentrocket.de (last access on the 29th of September 2020), the number of Law Students in Germany in the last years is almost a constant: around 100.000. What are they expecting? Whether it is representing the interest of a murderer trying to influence the judge´s decision in their favor or advising individuals, businesses, and government agencies on legal issues and disputes, and represent them in court and legal transactions, the path to become a “Rechtsanwalt” in Germany is really long and difficult.  

How to become an attorney in Germany: 

If you want to become an attorney, you will firstly have to complete a 9-semester study of law, which you will then complete with the first state examination (1. Staatsexamen). Afterwards, you will need to complete a 2-years legal clerkship (Referendariat), a kind of preparatory service, until the second state examination (2. Staatsexamen). Just after all these steps, you will be allowed to register with the respective bar association (Rechtsanwaltskammer) and finally receive the certificate of admission, also called in German “Anwaltszulassung”. 

And this is so important that no lawyer would like to risk it for nothing in the world… or almost! 

The tribunal decision of today’s review comes from the Berlin Bar Court and is the judgment of 25.03.2015 – II AGH 6/14. 

 

The Case: 

In the underlying case, a lawyer was expelled in May 2014 by the local bar association. The reason was that the lawyer had a sideline as managing director of a real estate trading company. The attorney considered the withdrawal of admission to the bar to be inadmissible and therefore filed a lawsuit.

Tribunal Decision: 

The Berlin Bar Court decided against the German Attorneys. The withdrawal of the attorney’s license to practice law was considered lawful according to § 14 (2) No. 8 of the Federal Lawyers’ Act. The activity as real estate agent is fundamentally incompatible with the legal profession. For this reason, there is a clear danger of a conflict of interests. 

In the opinion of the Court of Attorneys, it had to be taken into account that in the exercise of their profession, attorneys obtain knowledge of the client’s money and real estate assets. In his second profession as an estate agent, an attorney could for instance earn money from the restructuring of the assets. On the other side, the revocation of the lawyer admission can be considered a measure unreasonable hardness, as declared by the attorney´s defense. Insofar as the attorney had claimed that he would lose his income as a result of the revocation, this did not represent unreasonable hardship. It was unfortunately well-known to the attorney for years that the bar association had objected the activity as a managing director of the real estate trading company and would take to the cause of a revocation of the admission. He will therefore have had to terminate his activity in order not to risk revocation.

It doesn´t matter which career you are pursuing, it is of fundamental importance to always be careful and seek for help, in case of legal uncertainties. 

Contact us. Horak Attorneys at Law are here for you. 

Our new project at horak. Attorneys at Law

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Tribunal Decision – BWLH Reviews

Dear readers, 

as an international law firm, we are constantly in contact with the tribunal judiciary system in Germany and worldwide. Law is our passion and Law is what we want to talk about. 

In this regard, we are glad to present you our new project: 

Tribunal Decision – BWLH Reviews.

Our team is reviewing each week a significant actual tribunal decision and offering you the possibility to get to know our world better, step by step. Most of the decisions will come from the databases of the German Federal Supreme Court of Germany, Higher Administrative Courts, District Courts, Local Courts and so much more. 

This opening week will be all about the main topic that has been shaking and trembling this year 2020 all around the world: the corona virus pandemic. While all around the world people are fighting against the virus, the economy of entire regions is seeing the crisis coming. Restrictions and new regulation can however not stop the economy completely. From schools to offices, everything is getting digitalized and the world goes on…line, from home. Smart working, zoom meetings, home office are the keywords of the future.

But not everybody likes to work from home. 

This was the case of an over 60-year-old Berlin woman, that highly prefers her office instead of staying home. 

The Case: 

The applicant is employed as an official inspector at a Berlin district office. At the end of March 2020, her employer ordered that she should work in home office until April 2020. The decision was necessary for health care reasons, as the employee is exposed to an increased risk of COVID-19 disease due to her age. She should be available for the office by telephone, and if necessary, she would be given work orders for home processing. Against this order, the applicant claimed that there was no legal basis for imposing home office work. The internal regulations merely provided that home office could be ordered upon application by the respective employee; however, she had not made such an application. 

The Decision of the Tribunal: 

The 28th Chamber however dismissed the urgent application, as this is just an exceptional situation acceptable due to corona pandemic

The applicant had to accept the organizational measure taken, at least for a limited period of time. The office inspector remains in her function and is neither pushed out of the service nor forced to inactivity for an unlimited period of time. According to the court, in the exceptional situation caused by the corona pandemic, it is acceptable that the employment conditions (as office etc.) are temporarily limited to mere on-call duty and that individual tasks are to be executed in home office.

An appeal against the decision can be lodged with the Higher Administrative Court of Berlin-Brandenburg.

Order of the 28th Chamber of 14 April 2020 (VG 28 L 119/20)

What do you think about it? Are you living a similar case and you would like to talk to a lawyer about that? Get in touch with us.