The German Federal Court of Justice has decided a highly anticipated decision regarding the use of ring tones. The decision dealt with the question of whether the offering of music as ring tones without the approval of the copyright owner violates copyrights under sections 14 and 23 Copyright Act, or whether such use is covered by the agreement with the right collection society GEMA. Section 14 gives the copyright owner the right to prevent the misuse of his works if this infringes on his rights. According to section 23, adaptations or other transformations of a work require the consent of the copyright owner. In the case at hand, such consent was not given. The Federal Court of Justice agreed with the lower courts that the use of music as ring tones for mobile phones violates the rights under sections 14, 23 German Copyright Act. However, in contrast to the lower courts, the Federal Court of Justice decided that the use of music as ring tones is covered by the GEMA license of the year 2002. As of 2002, the GEMA license also encompassed the right to use the music as a ring tone. An additional consent of the copyright owner is hence not required if the music is transformed into a ring tone in a way that, at the time of granting, the usage right was customary and predictable. Only if this is not the case, the copyright owner may have a copyright claim under section 14. The Federal Court of Justice stated that in 2002, it was customary and predictable that the use of music as ring tones requires its modification and digital transformation.
As a result, when offering ring tones for mobile phones, one must be sure that those music works are covered by the GEMA license in agreements of the year 2002 or thereafter. Any use of ring tones for mobile phones based on GEMA licenses prior to such date might violate copyrights of the copyright owners.