Can I rewrite lyrics to copyrighted songs?

Copyrights and your rights - translating lyrics

by Jörg Dombrowski and Christian Weber,

The admissibility of editing and using foreign musical works and lyrics

Everyone who composes music and writes lyrics is consciously or unconsciously inspired by existing musical works. The question therefore often arises to what extent pre-existing works protected by copyright can be used, be it in unchanged or modified form, for example translated into another language or redesigned in terms of content. This question is regulated in the Copyright Act (UrhG).

Legal background

Both the composition and the text of a song are usually independent, copyrighted works. Anyone who wants to use such pre-existing works or uses them as a basis for their own work should be aware of the existing copyrights to these works. Depending on which use is planned, this may or may not be allowed.

If a work is created on the basis of a pre-existing work, the question of whether the exploitation of the newly created work is permitted or not depends, among other things, on the extent to which the newly created work is based on the "original" and the pre-existing work in the new created work is still recognizable. In principle, the author of the pre-existing work is free to decide on its redesign and use. In order to be able to answer the question of whether a certain use of a pre-existing work is permissible, the first step is to clarify which form of use it is. In the second step, the existence of the requirements for the respective use is to be checked. If this is available, use is permitted. If this is not available, the use requires permission from the author or the authorized person.

The use of pre-existing musical works in an unchanged form

The simplest form of adopting other people's works is to use them unchanged. This can be done, for example, by copying (so-called reproduction) or making them available for retrieval on the Internet (so-called public accessibility). Such a case of duplication occurs, among other things, if a band replays a pre-existing, published work (so-called cover version) and then duplicates it on CD. A case of making available to the public would be given, for example, if the lyrics of a pre-existing, published work were placed on a homepage on the Internet.

Although these examples are cases in which the pre-existing work is used unchanged, such use is only permitted with the consent of the author or the authorized person. In addition to or instead of the author, a music publisher or a collecting society, for example, can also be justified. In the latter case, permission for use does not have to be obtained from the author (s), but can be licensed centrally and easily via the responsible collecting society (GEMA in Germany). Acquiring a license through the collecting society has the advantage that the identification of the author (s) and the often difficult contact with them are no longer necessary and the collecting society acts as a kind of “one-stop shop”.

The change and redesign of pre-existing musical works - free use or processing requiring a permit?

Whenever a pre-existing work is used in a modified form, the distinction between the original work and the newly created work must be precisely defined. The law differentiates between so-called free use and so-called processing. While free use is permitted without the consent of the author, the publication and other use of an edited work generally requires permission from the author. The question of whether there is a processing or a so-called free use always depends on the specific individual case. The boundaries between free use and editing are fluid. A careful assessment is therefore required in each individual case.

Free use according to § 24 UrhG

Anyone who uses a foreign, pre-existing work as the starting point of his personal intellectual creation and in creating an independent work moves so far away from the template (original) that the original work only serves as an inspiration or suggestion and in the overall view of the newly created work moves into the background or "fades", creates a new, independent work. The greater the peculiarity of the original, the greater the peculiarity of the newly created work must be in order to let the peculiarity of the original take a back seat through one's own creative work.

According to § 24 UrhG, this new work can be published and used in so-called free use without the consent of the author of the work serving for mere inspiration.

In contrast to other works (e.g. lyrics), melodies have the special feature that pre-existing melodies according to §24 Paragraph 2 UrhG may not be recognized at all (so-called "rigid melody protection").

Processing according to § 23 UrhG

An adaptation of a pre-existing work is usually always involved when, for example, passages of a pre-existing song text are omitted, a melody is changed or a text is translated into another language. The decisive factor for editing is that a pre-existing work has been changed, but its core is retained and remains "recognizable". In contrast to this, with the so-called free use (see above) - inspired by a pre-existing work - a new, independent work is created that is detached from the original work. If this "distance" to the original is missing, processing has occurred.

Examples of processing requiring authorization:

- Changes to the melody of a pre-existing musical work

- Translation of a pre-existing song text into another language

- Omission or addition of text passages of a pre-existing song text

The editor must, if he wants to use the edited work, observe the copyrights to the original. He himself is therefore only allowed to use the processing with the corresponding consent of the author of the processed work. If this consent has not been given, the processor may neither publish the processing (e.g. translation) nor use it in any other way. If he does so anyway, he is violating the editing rights and the other copyright exploitation rights of the author of the edited original and he must expect claims by the author of the original. This can take action against the unlawful exploitation of the (processed) work. He can in particular be entitled to claims for removal, omission and compensation (§§ 97 ff. UrhG).

Admittedly, the processing as such according to § 23 UrhG itself does not yet require the consent of the author of the original. In this respect, one speaks of a so-called "freedom of manufacture with reservation of consent". The publication and other use of the processing, on the other hand, regularly requires the consent of the author of the original work. In order to respect the rights to the original and to avoid legal disputes, at the latest before publication or other evaluation of an edited work, the permission required for the planned use must be obtained from the author of the pre-existing work. To research the author of a musical work or lyrics, GEMA offers a corresponding work database with a search function.

The processing approval is usually given on a contractual basis. It is important to regulate the distribution of the copyright royalties between the author of the original and the processor, whereby the processor usually only has a small (or no) share due to his negotiating position. If permission cannot be obtained, for example because the author cannot be located or the author does not give his consent, lawful use is excluded and should be avoided if possible.

Editor copyright

Regardless of this, the processor automatically acquires his own copyright to the processing created by him as part of the processing of the original work (so-called processor copyright according to § 3 UrhG). The editor can therefore determine whether and how his work may be published and used. As the author of the processing, he has the same rights as the author of the pre-existing work. In the event of unlawful use of his processing, he can therefore take action and, if necessary, assert claims for removal, omission and compensation (§§ 97 ff. UrhG).

Editing of public domain works

In the event that more than 70 years have passed since the death of the author of the original work, a work becomes public domain, i.e. copyright protection ends (§ 64 UrhG). In such a case, in which the so-called protection period has expired and the work has therefore become public domain, it can be freely used by anyone. But caution is also required in this regard. This “freedom” refers only to the original version, but not to any edits derived therefrom at a later point in time and the independent author's copyright that arises as a result. Editing will only be in the public domain if more than 70 years have passed since the editor's death.

Conclusion

The distinction between permissible free use and processing that requires permission is difficult in individual cases. Only if it is unequivocally a mere "free use" within the meaning of § 24 UrhG does not require any permission from the author of the work that served as a suggestion or inspiration, if this fades in the newly created, independent work. However, this is seldom clearly the case. Anyone who wants to be legally on the safe side in order to be able to publish and evaluate a work they have created using a pre-existing work should therefore try to clarify the rights in advance.

If it is - as is often the case - not unequivocally free use, but processing or "borderline cases", it is advisable to obtain a corresponding processing permit or processing approval, i.e. a contractual agreement with the author of the pre-existing work. This should provide as clear a regulation as possible with regard to the scope of the permit, the scope of the permitted use and the division of the creative shares or copyright royalties based on the proceeds from the evaluation of the processing. Particular attention must be paid to the scope of the consent in order to acquire authorization for all planned uses. In order to be able to prove it later, it is advisable to make such an agreement in writing or at least in text form and to sign it mutually.

Under no circumstances should alleged "contract templates" that can be found on the Internet be used. As a rule, these do not fit the circumstances of the individual case and in the worst case even run against your own interests. Instead, it is advisable to have such an agreement drawn up by a lawyer who specializes in this area.

 


The authors Jörg Dombrowski and Christian Weber are lawyers at WeSaveYourCopyrights Rechtsanwaltsgesellschaft mbH in Frankfurt am Main and specialize in music law, copyright law and media law.

WeSaveYourCopyrights Rechtsanwaltsgesellschaft mbH represents musicians, artists and creatives from all areas of the creative industry in all legally relevant questions of copyright and media law, publishing law, online law, event law and trademark law.

Tags: blog, songwriting

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