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