## Facts

- A lead guitarist in Bruce Springsteen’s touring band performed at a concert in Los Angeles on June 5, 1992.
- The concert was recorded and simultaneously broadcast by multiple radio stations, including at least one broadcaster located in a Rome Convention contracting state.
- A German phonogram producer commercially released in Germany a CD titled “Bruce Springsteen – Live Los Angeles June 5th, 1992,” using recordings taken from the broadcast.
- The performing artist had contractually assigned exploitation rights derived from his neighboring (performer’s) rights to a third party.
- The performing artist (and an additional rights holder) sued in Germany seeking injunctive relief and damages for unauthorized fixation, reproduction, and distribution of the performance.
- The trial court found infringement and granted relief including damages.
- The court of appeal accepted infringement in principle but denied damages for lack of fault, and questions remained regarding the performer’s standing after assignment and the availability of protection for a performance occurring outside contracting territory.

## Issues

1. Whether a performing artist who assigned exploitation rights to a third party retains standing to sue an infringer for injunctive relief and damages.
2. Whether a performance outside Rome Convention territory is protected in Germany under Rome Convention Article 4(c) when broadcast by a contracting-state broadcaster.
3. Whether a professional phonogram producer acts at least negligently, supporting damages, by marketing a live-concert recording derived from a broadcast without verifying authorization.

## Decision

- The court held that the performing artist retained standing to bring claims for injunctive relief and, where appropriate, damages despite assignment of exploitation rights.
- The court held that Rome Convention Article 4(c) triggered national treatment, requiring Germany to protect the performance because it was broadcast by a contracting-state broadcaster.
- The court rejected the appellate court’s restrictive view of fault, indicating that a professional phonogram producer may be negligent when exploiting such recordings without adequate rights clearance.
- The appellate judgment was partially reversed and the case was remanded for further proceedings consistent with these rulings, including reconsideration of damages.

## Legal Principles

- Assignment of a performer’s exploitation rights does not, by itself, eliminate the performer’s standing to seek an injunction against unauthorized exploitation of the performance.
- A performer may also pursue damages against an infringer after assignment where damages are legally supportable under the applicable neighboring-rights framework.
- Under Rome Convention Article 4(c), a performance can receive protection and national treatment in a contracting state when the performance is broadcast by a broadcasting organization in a contracting state, even if the performance occurred elsewhere.
- Professional phonogram producers have a duty to investigate and clear necessary neighboring rights before fixing, reproducing, and distributing recordings of broadcast live performances; failure to do so can constitute negligence sufficient for damages.

## Conclusion

The court recognized continuing standing for a performing artist after rights assignment, applied Rome Convention Article 4(c) to extend protection based on contracting-state broadcast, and required a stricter negligence analysis for commercial release of broadcast-derived concert recordings, remanding for renewed consideration of damages.


Bruce Springsteen & His Band (Ger. Fed. Ct. Just. Apr. 23, 1998) (I ZR 205/95)