Judgment of the Presidium of the Supreme Commercial Court of 19 November 2013 № 5861/13 in the case The company “First Musical Publishing House” vs The company “MTF Production” 

Point of law: whether the use of musical composition in its original form (i.e. without remaking), but as a part of a complex object (a mock theatrical performance), by parodists constitutes the violation of the exclusive right to such composition?
1) it does not, because there was no independent use of the music which would extrude from the civil turnover the original object protected by the exclusive right, and thus would have caused harm to the right-holder; 2) it does constitute violation, because musical compositions may exist either independently or as a part of a complex audiovisual object and be protected irrespective of its other parts; at the creation of a parody the original object must be in the focus of the new one and not serve as its mere background or auxiliary tool. 
Ratio decidendi: in the view of the Presidium, the second approach is legally cоrrect.
Practical consequences: the Judgment says that prior court decisions in analogous cases if inconsistent with this interpretation may be reversed in the procedure and within the limits envisaged by Art 311 of the Commercial Procedure Code. 


Dissenting opinion:
  • In this case the Presidium ought to articulate an approach to the determination of the degree of remaking of a composition required for its being assessed as a parody; in so doing, it is necessаry to pay attention to recognizability of the character which is being parodied: the more the object of parody is known to the general public, the greater degree of remaking of the original object is allowed to the parodist. 

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Subject area:
Civil Law IP-rights