In a copyright dispute, Munich Regional Court I had to deal with a song by the German hip-hop group “Die Orsons”. In its judgment of December 12, 2017, the court ruled that a sentence often repeated by a Ferris wheel announcer at a fair is not yet a spoken work within the meaning of Section 2 para. 1 no. 1 UrhG. The requirements for the level of creation were simply not yet met.
Orsons use a phrase from a Ferris wheel announcer
The plaintiff is a Ferris wheel announcer and also performs as such at the Oktoberfest in Munich. She repeated her announcement through a microphone:
“Yes, and now, let’s get things going again, hey, let’s go, let’s rock, full throttle, full power, wow, great!“
This sentence was used several times by the Orsons in one of their songs, both as an intro and as a background interlude. The Ferris wheel announcer objected to this and demanded, among other things, an injunction. She argued that the Orsons used her voice without her consent and that the phrase was protected by copyright. She in turn based this on the originality and unusual nature of the sentence as well as her particular style of pronouncing the words in the specific order. The Orsons denied the allegations and stated that it was not the plaintiff’s voice.
LG Munich I: No copyright protection of the sentence as a linguistic work
However, the action was unsuccessful before the Munich I Regional Court. According to the judges, the sentence was not a linguistic work within the meaning of Section 2 para. 1 No. 1 UrhG. In the case of a linguistic work, the intellectual content must be derived from the work itself. The particular manner of performance or the vocal intonation play no role.
The principle of the small coin also applies here, but has not been achieved
Essentially, the principle of the so-called “small coin” applies, so that short and simple works can also be classified as linguistic works. However, this does not make a certain level of creativity dispensable. The shorter a linguistic work, the higher the requirement for the level of creation must be in order to keep the scope of protection within limits. Accordingly, a linguistic work must stand out from the ordinary and reveal a special intellectual achievement.
However, in the opinion of the Munich judges, the sentence of the Ferris wheel announcer in dispute did not meet these increased requirements for the level of creativity. The sentence was banal and advertised recognizable rides without clearly distinguishing itself from other similar advertising.
No protection via ancillary copyrights
Protection via the so-called ancillary copyrights of the performing artist pursuant to Section 73 UrhG is also ruled out here. This is because not every performance, singing or interpretation fulfills the requirement of a performance within the meaning of the aforementioned standard. Rather, an artistic interpretation of the work is also required here.
The spoken sentence originates from the social sphere – consideration therefore clear
With regard to the plaintiff’s voice, Munich Regional Court I left the allegations of the Ferris wheel announcer unanswered. It did not consider the reproduction of such a sequence in the song to be an infringement of personality rights within the meaning of Section 823 para. 1 BGB, Art. 1 para. 1 in conjunction with Art. 2 para. 1 GG. The fact that the Giant Ferris Wheel announcer had publicly reproduced the sentence several times in front of a wide audience and that the sentence was therefore to be assigned to the social sphere was of importance.
Accordingly, the general right of personality had to be weighed against the artistic freedom of the German hip-hop group Die Orsons. Unfortunately without success.