Can you use short musical sequences as background loop for a rap song? "Goldrapper"

The German Federal Court of Justice (Bundesgerichtshof) this week had to decide on the legality of using short musical sequences as background loop for a rap song (decision of 16 April 2015 - I ZR 225/12 - Goldrapper).  In a copyright infringement case brought by French Gothic group Dark Sanctuary against German rapper Bushido, the Bundesgerichtshof disagreed with Higher Regional Court of Hamburg (OLG Hamburg, decision of 31 October 2012 - 5 U 37/10) and held that the original link (or connection) between the lyrics and the music of a song is not protected by copyright.

Dark Sanctuary had objected to Bushido’s use of parts of their songs for 13 of his own rap songs. Bushido had electronically copied (“sampled”) sequences of about 10 seconds of the music of Dark Sanctury’s original song recordings, however without using the original lyrics.  He had then turned these sampled melody sequences into a repetitive loop, combined this with a beat and added his own rap lyrics.  Dark Sanctuary regarded this use of their recordings as copyright infringing and inter alia demanded compensation and that Bushido cease using their music.

Claimant No. 1 based this on his rights as composer of the music, claimant No. 2 on his rights as author of the lyrics.

In its decision of 16 April 2015 the Bundesgerichtshof disagreed with the Higher Regional Court of Hamburg and denied a copyright infringement of the author of the lyrics.  The judges took the view that the original connection between lyrics and music was not protected by copyright.

With regard to the claim brought by the composer of the music, the Bundesgerichtshof decided to send the case back to the lower court for a fresh assessment and noted that the Hamburg judges had based their decision on their own aural impression and only partially referred to a report by an expert witness. The Bundesgerichtshof held that findings of the Hamburg court did not properly support its assumption that the sampled sequences were protected by copyright. In particular, the objective characteristics required for the copyright protection of the sampled melody sequences and how these were dominated by the composer’s creative effort had not been properly determined. The Bundesgerichtshof further took the view that the Higher Regional Court of Hamburg should not have assessed the question of whether Bushido had infringed claimant No. 1’s without the involvement of a musicologist expert witness.  Furthermore, the lower court’s decision did not explain sufficiently why it had found that the sampled sequences amounted to more than a routine creation.

The Bundesgerichtshof’s press release of 16 April 2015 can be found here (in German).