## Facts

- Bob Dylan (plaintiff) was an American citizen and a well-known singer and songwriter.
- CBS, Inc. (CBS) (plaintiff) was an American corporation that produced and distributed sound recordings.
- Dylan had a contract with CBS that granted CBS exclusive rights to make sound recordings of Dylan’s performances, distribute them worldwide, and transfer those rights to CBS subsidiaries as exclusive exploitation rights.
- A wholesale distributor of sound recordings (defendant) marketed for sale in Germany “bootleg” sound recordings of Dylan’s live performances that had taken place in the United States.
- Dylan, CBS, and CBS’s German subsidiary sued in Germany to stop the defendant from selling the bootleg recordings in Germany.
- Dylan sought national treatment—i.e., the same protection as a German performing artist—and relied on the rights of performing artists under German copyright law.

## Issues

1. Whether Dylan, as a U.S. performing artist, could claim national treatment in Germany so that German law governs protection against unauthorized exploitation occurring in Germany.
2. Whether the sale in Germany of unauthorized (“bootleg”) recordings of Dylan’s U.S. live performances violated German-law rights of performing artists.
3. Whether CBS and CBS’s German subsidiary could assert the contract-based exclusive exploitation rights against a third-party wholesale distributor selling bootleg recordings in Germany.

## Decision

- The court held that Dylan could claim national treatment for protection in Germany and could invoke the German-law rights granted to performing artists for exploitation occurring in Germany.
- The court found that distributing and selling bootleg recordings in Germany constituted unlawful exploitation under German performers’ rights, even though the live performances occurred in the United States.
- The court recognized that CBS’s contract-based exclusive rights in Dylan’s performances, including the ability to transfer exclusive territorial exploitation rights to a German subsidiary, could be asserted to stop unauthorized commercial distribution in Germany.
- The plaintiffs were entitled to injunctive relief against further sales of the bootleg recordings in Germany.

## Legal Principles

- Protection for acts of exploitation in Germany is determined under German law (lex loci protectionis), regardless of where the performance took place or where the recording was made.
- National treatment requires that foreign performing artists receive the same German-law protection and remedies as German performing artists for infringing acts occurring in Germany.
- Performing artists’ neighboring rights under German law include control over the unauthorized fixation of performances and the commercial distribution of recordings embodying those performances.
- Importation, offering for sale, and wholesale distribution in Germany can constitute independent infringing acts under German performers’ rights, even if the original recording occurred outside Germany.
- Contractual grants of exclusive exploitation rights in performances and resulting recordings, including downstream transfers to subsidiaries for specific territories, can be enforceable against third parties whose commercial acts interfere with those exclusive rights.

## Conclusion

Bob Dylan, CBS, and CBS’s German subsidiary obtained relief in Germany against a wholesaler selling bootleg recordings of Dylan’s U.S. live performances, with the court applying German law to domestic exploitation, granting Dylan national treatment, and treating both statutory performers’ rights and CBS’s exclusive exploitation rights as a basis to bar further German sales.


Bob Dylan, 18 IIC 418 (1985)