At first glance, background music in foyers and waiting areas appears to be merely a way of creating a welcoming atmosphere. Nevertheless, the associated copyright provisions should not be underestimated under any circumstances, as even minor infringements can have costly legal consequences. In particular, the question of the required licensing, the involvement of collecting societies and the design of usage rights are central aspects that need to be considered. The aim of this article is to provide an insight into the central legal requirements and to raise awareness of the associated risks. At the same time, it will delve into the world of thought of German and European court practice, which is decisive for legal decision-making here.
The copyright classification of background music
The question of the copyright relevance of background music has a certain history. Even the case law of the European Court of Justice (ECJ) is inconsistent here, which not least complicates legal advice in this area. This is remarkable, because German copyright law in § 2 para. 1 no. 2, para. 2 UrhG (German Copyright Act) provides for the protection of musical works. This also corresponds to the requirements of European copyright law. Nevertheless, the interpretation of the ECJ has led to considerable discussion (even) among copyright experts.
In particular, the question of whether GEMA licenses are required for the playback of background music in waiting areas or foyers cannot be answered in general terms. This applies specifically to institutions such as tax offices, law firms or companies for which no clearly defined court practice exists.
Landmark ECJ case law and its impact
A frequently cited judgment of the ECJ from 2012 dealt with background music in a dental practice. The ECJ ruled that the distribution of phonograms in the dental practice in the presence of patients who, independently of their own will, "enjoy" such sound reproductions, does not fall under the copyright exploitation right of public reproduction (ECJ, judgment of March 15, 2012 – C-135/10, SGF). The ECJ's main reason for this was that patients in a dental practice are not "receptive" to the music. According to the ECJ's reasoning, the music reached the patients at most at the periphery or (more likely) "by chance", and without this being intended in this situation. This reasoning was as surprising as the result. Hardly anyone had expected this. Basically, no one had been aware of a criterion of "lack of receptivity" before.
The dentists who could henceforth save their GEMA fees were all the more pleased. The playing of music (at least) in dental practices was suddenly irrelevant in terms of copyright – with the result that the current GEMA contracts could be extraordinarily terminated. The Federal Court of Justice (BGH) later confirmed this decision (judgment of June 18, 2015 – I ZR 14/14), thereby safeguarding this practice.
But does the same apply to foyers and other waiting areas? This question remains difficult to answer.
Court practice regarding other waiting areas
In 2022, the District Court of Frankfurt am Main ruled on background music in the waiting area of a pizza delivery service (District Court of Frankfurt am Main, judgment of December 9, 2022 – 32 C 1565/22). The court doubted that the playback was "public" because the number of self-collectors in the restaurant in question was limited to about 10 people per day. "Public", on the other hand, refers to "quite a few people" or "quite a few people" - again, formulations from the case law of the ECJ that leave room for interpretation. In addition, the District Court of Frankfurt am Main referred to the ECJ ruling of 2012, stating that the customers of a pizza delivery service are just as little "receptive" as the patients of a dental practice:
"In addition, [...] the concept of communication to the public presupposes that the user is deliberately addressing the audience for whom the communication is being made and that the audience is in some way or other receptive to the communication of the recording and is not merely reached by chance; This is said to be lacking, for example, when playing music in a dentist's waiting room […]. It is not clear why the audience waiting for dental treatment […] should be fundamentally different from the customers waiting for pizza. The respective anticipation may be differently pronounced; in either case, however, the waiting people are inevitably reached by the background music, so to speak, without their wanting it and without consideration for their receptivity.
Transferability to foyers and similar areas
In the opinion of the author, these judgments can also be applied to other waiting areas or foyers. This applies in particular if:
- the area is only visited by a few outsiders every day,
- the stay is short-term,
- the visit is not for the purpose of listening to music, but for other reasons, and
- the music is not used to accompany an activity, such as in rehabilitation facilities, which the ECJ has clarified in a restrictive way (see ECJ, judgment of 31.05.2016 – C-117/15 – Reha Training/GEMA).
These criteria are likely to be met by many waiting areas in tax offices, law firms, companies and institutions. Nevertheless, it remains unclear how many people are considered "quite a few" or "quite a few". Is it 20, 50, 100 or more? Unfortunately, case law does not provide any clear answers on this point – nor does it clarify how this relates to the criterion of "lack of receptivity".
In this respect, the ECJ (unfortunately) leaves one with questions.
New developments and further uncertainties
More recent decisions by the ECJ on background music in airplanes and trains (see ECJ, judgment of April 20, 2023 – C-775/21, C-826/21, Blue Air) could indicate a contrary tendency. In this case, the ECJ ruled completely differently and does not doubt the existence of a communication to the public among travelers. According to the ECJ, background music in passenger planes and trains is a copyright-protected use subject to GEMA fees. The fact that (also) travelers – usually equipped with their own headphones or (just) dreamily immersed in their own thoughts – might lack the "receptivity" is not discussed or even hinted at by the ECJ at any point here.
Admittedly, the number of people reached by the music in the context of public transportation (airplanes, trains and buses) is significantly higher than in foyers or waiting areas of doctors' offices or law firms. Therefore, the cited judgment of the ECJ from 2012 could continue to apply. However, patients or clients who are in waiting rooms or foyers and are waiting for their appointments are just as unable to escape the "enjoyment of music" in the background as train, bus or plane passengers. Likewise, in both cases, the music does not fulfill a role that accompanies the activity (unlike certain forms of therapy or relaxation massages) and reaches people "by chance".
Here, it is (unfortunately) still completely unclear where the respective boundaries are to be drawn.
Conclusion: each case must be examined individually
The question of the copyright relevance of background music is complex and cannot be answered in general terms. Companies should be aware of the potential risks here and, if necessary, seek legal advice to clarify their specific situation.
The legal advice given in such cases depends on the individual case and requires a particularly careful evaluation of the relevant case law.
Those who want to avoid legal conflicts with GEMA should have it checked at an early stage whether a license is required or whether the use of music is unproblematic from a copyright perspective.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.