Musikpiraten e.V. examines option to sue GEMA for copyfraud

Kurz-URL: http://mkzä.de/1245

On September 12th, 2011, the nonprofit association Musikpiraten announced the winners of its creative commons competition "Free! Music! Contest". In addition to the download, the songs shall also be published on CD in a high-quality DigiPack. During the production of the CD, problems have arisen with the German royalties collection society GEMA, which claims to hold the rights on five of the songs and has issued an invoice of € 350,96. The Musikpiraten association now examines the option to file a complaint against GEMA because of copyfraud.

"GEMA's claim to hold these rights is demonstrably false. All artists have explicitly declared that they are neither members of GEMA nor of any foreign royalties collection society. The demands are therefore clearly a copyfraud", explains Christian Hufgard, chairman of the Musikpiraten.

In principle, jurisdiction in Germany grants GEMA the so-called GEMA assumption. Accordingly, GEMA presumes that every author worldwide is a member of either GEMA or a respective foreign organisation. Based on this assumption, each production of a music CD in Germany has to be explicitly cleared by GEMA, and for every life event a title list must be submitted by the organiser. This is also the case if the artists are not members of GEMA and do not play titles that are subject to GEMA fees.

"The GEMA assumption is an anachronism and will hopefully soon be a thing of the past. Internet portals like with more than 52,000 albums published under creative commons license are a proof that the principle of "all rights reserved" is outdated", says Hufgard. "If an artist verifies to us or to another publisher that he or she is not a member of GEMA, this certainly must have more weight than the blanket assumption that every author is a member of GEMA or a similar society."

A search on the GEMA website easily proves that none of the titles [*] the society allegedly represents is actually registered there. The claim that GEMA holds the respective rights is solely based on the fact that authors of the same name are members of GEMA or another royalties collection society from abroad.

Michael Koch, member of the band "the.princess.and.the.pearl", is one of the victims of the confusion. "We think nothing at all of GEMA. I used to be a member, and our band actually lost a couple of gigs, because the organisers of small festivals were unable to afford the GEMA fees, of which hardly anything flows back to the band in terms of royalties", explains the singer and guitarist. "The fact that we, as non-members, must prove that our music has not been composed by a GEMA member, demonstrates that the society has too much power – and that it abuses it ruthlessly."

Upon inquiry, GEMA expressed the assumption that the authors might have forgotten to register their titles. The Musikpiraten association will now have to prove that the identical names are purely a coincidence. Only if this is successful, it will receive a credit note in the amount of the sum demanded in the invoice.

In 2008, GEMA had already claimed to hold the rights on a song of the band "JAMMIN*INC", which was to be pressed on CD in the context of the OpenMusicContest. After a short time, the royalties collection society had to back down and admit that it held no rights whatsoever on the song.

Affected titles

"Zombie Nation" by Jose Travieso (allegedly member of the SGAE), "Vague" by Michael Koch (the.princess.and.the.pearl), "Dragonfly" by Texas Radio (texasradiofish) 'GEMA assumption, because of the use of a group name or pseudonym' (Texas Radio is a DBA registered in Texas, and as such legally competent, comparable with a stage name listed in a German identity card), "Nur Freunde" by Andreas Herr (Friedrich Chiller), "Extrovertiert" by Walter Müller (The Egotwisters).