2.2.2 Musical and sound works

Pursuant to Art. 2 para. 2 (b) CopA, works of music (sound works, melodies, etc.) and other acoustic works enjoy copyright protection if they are intellectual creations with an individual character and are perceptible to the senses. However, the requirement for individuality is not very high, except when it just relates to banal sound sequences such as scales, chords, etc. Parts of a musical or sound work can also enjoy copyright protection. Such music parts can be melodies, for example. Melodies are typically self-contained tone sequences that are perceived as an independent musical form. They fulfil the requirement of individuality in most cases and thus enjoy copyright protection. This is different for a musical motif, the smallest meaningful musical unit, which can also consist of only two tones. It usually has insufficient individuality, which is why it cannot claim any copyright protection. The question of the copyright protection of parts of musical works has particular importance in connection with “sampling”, the use of parts of a musical piece, a melody or a motive for the composition of a new piece.

It is irrelevant for the work character of a sound work how long an acoustic work is or how many sounds it includes. Furthermore, a musical work does not have to be written down in note form to be protected; the music must only be perceptible in acoustic terms; for example, it is sufficient if a street musician improvises a melody.


Graphic recording of music (sheet music)

Graphic recordings of sheet music do not fall under Art. 2 para. 2 (b) CopA. Apart from exceptions, they do not have any copyright protection themselves; they are only the communication form of the – potentially protected – music. However, when reproducing sheet music, it must be noted that if the music itself is protected by copyright, the corresponding sheet music may not be reproduced or only reproduced under certain conditions.

No protection of musical styles, musical theories, etc.

In the same way as the idea or the thought itself do not enjoy any independent copyright protection, rather only when these are cast in a form which is perceptible to the senses, a special musical style (e.g. blues, classical music, jazz, techno, etc.) or a musical theory alone is also not a legitimate work in itself. That means that a newly created musical style can also be used by others and further developed, for example, without requiring any consent (cf. a rather old but extremely good decision of the Federal Supreme Court: BGE 70 II 57 et seq. for further information).

What about straight interpretation of music by musicians, singers, etc.?

A musical performance, a concert or other presentations of existing musical works are basically unprotected works within the meaning of Art. 2 para. 2 (b) CopA as they lack the required individuality. Simply said, anyone who sings a song from notes usually does this as any other person would do it. However, in individual cases, an interpretation of a musical work may be so unique and so characteristic of the composer that there is sufficient individuality to protect the interpretation. Then this is considered to be a derivative work of the original work (derivative work, Art. 3 CopA).

However, even if the efforts of singers, orchestras, musicians, conductors, sound engineers, etc. who present or interpret a musical work do not fall under Art. 2 para. 2 (b) CopA because of a lack of individuality, they are not totally without legal protection. Pursuant to Art. 33 et seq. CopA, performance artists enjoy what is known as protection of related rights. On the one hand, this gives them the right to decide who records their presentation, makes it perceptible elsewhere, forwards it, or who may copy it (Art. 33 para. 2 CopA). On the other hand, the performers have a right to remuneration from the related rights (Art. 35 CopA). Furthermore, related rights also guarantee personality rights for performers and the right to be recognised as such when they perform a work (Art. 33a CopA). In the same way as copyright protection, the protection of related rights also only exists for a certain period; however, the protection of related rights (Art. 39 CopA), which amounts to 50 years from the moment of performance, is shorter than the copyright protection period, which amounts to 70 years from the creation of a work (Art. 29 et seq. CopA).


2.2.2-1 Are remixes (editing an existing music title, e.g. by changing the bass frequency, adding new melodies or instruments, etc.) on the basis of third-party musical works permitted by law? And is a remix itself also protected?

Yes, but only with the permission of the affected owners of rights. Depending on the case, these are the author or the publishing house that holds the rights to the work, the record company that holds the rights to the recording, the phonogram company, any co-composers, etc.

As a derivative work, the remix itself enjoys individual copyright protection pursuant to (Art. 3 CopA) if it is an intellectual creation with an individual character and is perceptible to the senses pursuant to Art. 2 para. 1 CopA.

2.2.2-2 Is sampling permitted without further ado (use of sound sequences from old (known) music titles for the production of new music titles)?

Basically, it actually requires the consent of the owner of rights of the original music title (composer, record and phonogram company, etc.). Sound sequences or melodies can also be copyright protected parts of musical compositions when they fulfil the conditions specified in Art. 2 para. 1 CopA (intellectual creations with an individual character and perceptible to the senses). This may regularly be the case during samplings because the used melodies or sound sequences from musical compositions are typically characteristic of the requisite piece, so that everyone recognises it in the sampling.

However: in a decision dated 31.5.2016 (Az. 1 BvR 1585/13), the German Federal Supreme Court permitted sampling without the specific consent of the author for reasons of constitutionally specified artistic freedom.

In the case of samples manufactured in Switzerland, the consent of the owner of rights should nevertheless be obtained as a precaution.