[Guest post] 'Grand rights' of great importance: copyright on the big stage (part II): Danish Supreme Court rules that “all” actually does mean “all”

The IPKat is pleased to host the following guest post by Katfriends Hanne Kirk and Jakob Plesner Mathiasen (both Gorrissen Federspiel) on the topic of 'grand rights' in a recent Danish decision.

Here's what they write:

'Grand rights' of great importance: copyright on the big stage (part II): Danish Supreme Court rules that “all” actually does mean “all”

by Hanne Kirk and Jakob Plesner Mathiasen

Small Kats ...

Back in November 2020 these Katfriends wrote about a Danish case regarding ‘grand rights’ in the music industry. The case concerned a copyright action brought by the members of the Danish band Michael Learns to Rock (MLTR) against EMI Casadida Music Publishing ApS (EMI) regarding entitlement to ‘grand rights’. The question before the court was whether two identical music publishing agreements from 1993 included an assignment of grand rights from the band and one of the band members to EMI.

As stated in the previous post on the case (quoting ourselves) there is no statutory definition of 'grand rights', but it is generally understood in the music industry that public performance rights are categorized as either 'grand rights' or 'small rights''. Grand rights cover dramatico-musical works, such as musicals, ballets, operas, operettas, pantomimes and revues, while small rights cover the usual non-dramatic works.

This distinction is rooted in consideration for the author without any specific legal basis. The reasoning is that there is a greater need for protection of 'droit moral' associated with dramatic stage performance. Grand rights are recognised as being 'in a league of their own' and are usually personally managed by the author.

... and grand Kats

Back in 2020, when MLTR appealed The District Court’s decision to the High Court of Eastern Denmark, the general opinion in Denmark was that an author’s assignment to a music publisher of “all rights to public performance” would not include ‘grand rights’ unless explicitly stated.

The High Court of Eastern Denmark upheld the lower court’s decision, which challenged the previous general opinion on assignment of ‘grand rights’.

The principle character of this led to a so-called third instance permission to bring the case before the Danish Supreme Court. A few days ago, the Supreme Court ruled that ‘grand rights’ were included in the agreement. As a result, it upheld the decision of the High Court of Eastern Denmark. The Supreme Court referred to the wording of the provisions on transfer of rights according to which ‘all rights to commercial exploitation’ of the works concerned would be transferred. Furthermore, the Supreme Court explicitly mentioned that provisions on a complete transfer of all rights were not unusual in the music industry in 1993. Finally, the Supreme Court noted that the possibility of using already existing compositions in musical-dramatic performances were not an unknown exploitation at the time of the agreements.

The decision is of great significance to the Danish music industry as the Supreme Court clearly stated that it is not necessary to specify each form of exploitation which is transferred but recognized general transfer clauses (of all rights), which – back then and now – are common practice in the music industry.

[Guest post] 'Grand rights' of great importance: copyright on the big stage (part II): Danish Supreme Court rules that “all” actually does mean “all” [Guest post] 'Grand rights' of great importance: copyright on the big stage (part II): Danish Supreme Court rules that “all” actually does mean “all” Reviewed by Eleonora Rosati on Wednesday, May 25, 2022 Rating: 5

1 comment:

  1. The case in question makes a critical distinction that certain commentators would take exception to. As long ago as 1992, Bob and Al Kohn in their foundational text in American Law, "The Art of Music Licensing," clarify the ongoing misidentification of "grand rights." According to them, a "grand right" is ". . .the exclusive right to license the reproduction, adaptation, performance, or other use of a dramatico-musical work . . .It is a right in all the contributions of the musical play as a 'single work. It is not a right in just the music or in any single song or other literary, musical or other contribution to the play." (p.744)

    As they highlight, which is often forgotten, in addition to there being a copyright in the individual components of a dramatic work, there is an additional copyright in the collective work that an audience would see or hear performed. It is this additional copyright, according to the Kohns, that is the "grand right."

    In the United States, while many follow the distinction made in this case, the more technical difference between the two rights and who handles them are between "non-dramatic" (or "public performance") and "dramatic" performance rights. Non-dramatic public performance licenses are generally handled by performing rights organizations such as ASCAP or BMI, while dramatic performance rights are handled by the publisher in most cases. (See the definition of "right of public performance" in the consent agreement between the United States and ASCAP, for example, which limits the areas in which ASCAP can function.)

    Under this analysis, the real issue here is not one of whether different rights are included in an all-inclusive grant, but whether there is a reason to interpret the absolute language to be something less than absolute based on historical business practices.


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