For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Thursday, 31 July 2008

Beauty, Beast and Hunchback score dramatic victory

The IPKat recently received this newsflash from the 24IP Law Group, Munich. It concerns a recent decision from Germany on a copyright issue of some substantial interest to those who love fundamental copyright concepts.

Right: Beauty (left) and the Beast -- if you can recognise them from the song routines, it's a dramatic performance

The note reads, in relevant part:

"The Federal Court of Justice (Bundesgerichtshof, BGH) decided on 3 July 2008 (File no.: I ZR 204/05) the conditions under which a performance of a musical should be considered as a “dramatic performance” in terms of the German Copyright Law (Urheberrechtsgesetz).

Disney Enterprises Inc. is the owner 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.

In Germany a creator and copyright owner must assign the performance rights of a work of music to GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte), the German Performance Rights Organisation. The owner reserves the rights to stage performances of musical shows. Business in musical shows has become highly profitable in Germany and there has been a debate of the extent of the rights assigned to GEMA. The question for the court was to decide whether it was allowable to perform excerpts of a musical by merely paying the licence fee to GEMA – 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. Some of the key scenes were reproduced and several of Disney’s most famous songs were arranged with appropriate costumes and stage design. 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.

The decision of the Federal Court of Justice strengthens the rights of copyright owners of works of musical art in Germany. In the past they had no legal means to stop the reproduction of scenes or parts of their work .... They had to be content with the copyright fee paid to the Performance Rights Organisation. Copyright owners will now be able to stop shows being put on without their permission and artistic control. If necessary, it should be possible to obtain an interim injunction within hours to prevent a show being staged".
The IPKat says this looks right in theory, though it will send a few impresarios scurrying back to the drawing-board to devise more risk-free shows. Merpel says, presumably many people in the past have paid their GEMA fees in good faith and no-one has yet thought to sue them ...

Beauty and the Beast here
Lion King characters singing "It sucks to be be me" here
For dyslexics only: number of Google hits for "Loin King": 42,500

2 comments:

Ben Challis said...

I wonder if the courts, either here or in Germany, will ever go any further and prevent popular works of music being incorporated into a musical? Whilst Abba (Mama Mia) and Queen (We Will Rock You) have supported West End musicals about their music, the musical 'Never Forget' is a story about the early years of Take That, clearly featuring songs from the band which went ahead despite the wishes of the band. And there are a number of 'tribute' shows which are dramatic-musical works which tour around the UK and elsewhere - one being a tribute to 'Bat Out Of Hell' by Jim Stienman (the songs originally performed by by rock star MeatLoaf in a fairly dramatic way!). As far as I know these tribute shows just rely on just paying PRS on Box Office and not clearing the Grand Right.

Dennis Collopy said...

Grand rights are usually exercised by the publishers directly rather than through the collection societies as a matter of principal so I am surprised an established theatrical promoter would expect a license for a compilation show from the local performing rights body especially one featuring works owned by Disney - with both an extensive theatrical portfolio of its own and a reputation for vigorously defending all of its IP rights.
Most Us and UK Publishers specifically exclude grand rights from their sub-publishing agreements to avoid any rights to approve such productions being granted to the local collection societies
"Never Forget" features songs by Gary Barlow that were licensed by him in 2006 a short while before Take That reformed. Clearly he ( or maybe his other band members) thought better of it hence their attempts to disavow the musical

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