KI-Flash: GEMA v. Suno – German Court Assesses AI Training not to be Fair Use Under US Law

On 31 July 2026, the 42nd Civil Chamber of the Munich Regional Court (Landgericht München I) issued its final judgment largely upholding GEMA's claims against the AI music generator Suno (case no. 42 O 763/25; oral hearing held on 9 March 2026). We previously reported on this on LinkedIn. The full, 137-page grounds for judgment are now available and go significantly beyond the press release issued the previous week. Below, we set out the central passages of the decision: from the memorization and adaptation of the works in Germany, to the application of US law to the reproduction during training, to the legal consequences ordered by the court.

Stream-Ripping and Open-Ended Prompts

The proceedings concerned six musical works: "Atemlos durch die Nacht" (Kristina Bach), "Rasputin" (Frank Farian, Fred Jay, George Reyam), "Big in Japan" and "Forever Young" (Marian Gold, Bernhard Lloyd, Frank Mertens), the chorus of "Mambo No. 5 A Little Bit of…" (David Lubega, Christian Pletschacher), and "Daddy Cool" (Frank Farian). The dispute did not concern the lyrics, but rather the melody, harmony, rhythm, and arrangement of the compositions. Suno had obtained access to the works by stream-ripping them from YouTube, in the process circumventing the platform's technical copy protection, the so-called Rolling Cipher. To generate the outputs at issue, the claimant used between four and 176 prompts per work, each limited to the original lyrics, the desired musical style, and the title of the work, without any further musical instructions.

Copyright Protection as a Preliminary Question

Before turning to the actual question of infringement, the chamber had to establish, for each of the six works individually, that it met the threshold for copyright protection. The chamber listened to the tracks during the hearing and evaluated the private expert opinions submitted by both parties; it rejected the defendant's request for a court-appointed expert opinion, on the grounds that the members of the chamber themselves belonged to the relevant public familiar with musical matters. For the remainder of the judgment, this examination is more of a preliminary question than the actual focus: the heart of the decision lies in what happened to the protected works during AI training and in the outputs.

Reproduction and Adaptation in Germany

On the question of whether a reproduction occurred in Germany, the chamber relied on the concept of memorization: the works were reproducibly contained within model versions v3.5 and v4, which goes beyond the mere learning of statistical patterns. The court found that both the memorization within the model (Section 16 UrhG) and the public communication of the outputs (Section 15(1), (2) UrhG) constituted an infringement, for which the defendant, not the users, was responsible, because the simple, open-ended prompts did not control the specific content of the outputs. In the chamber's view, the text and data mining exception under Section 44b UrhG did not apply. For outputs that were not identical reproductions but recognizable adaptations of the original works, the chamber additionally relied on Section 23 UrhG: a distinction between reproduction and adaptation was in any event unnecessary, since any adaptation fixed in material form simultaneously constitutes a reproduction.

No Making Available to the Public

Not every claim brought by GEMA succeeded. The claimant had also based its claims regarding public communication, in the alternative, on the right of making available to the public under Section 19a UrhG. The chamber dismissed this part of the claim: making a work available to the public requires that the public can access the work from a place and at a time individually chosen by them. Because retrieving some outputs required up to 176 identical prompts, the chamber did not consider access "at a time of the user's choosing" to have been sufficiently established. GEMA was, however, able to successfully base its claim instead on the right of public communication under Section 15(2) UrhG.

Jurisdiction of German Courts Over AI Training in the US

On the basis of the concentration rule in Section 131(2) VGG, the claimant, as a collecting society, was also able to bring the claims arising from the purely US-based training activities before the same court. This provision allows a collecting society to bundle all claims against the same infringer before a single court with jurisdiction under Section 131(1) VGG, even where different courts would otherwise have jurisdiction over individual infringing acts; the sole requirement is that the infringer is identical, not that the individual infringing acts are identical.

The Path to US Law: Article 8 Rome II and the Court's Own Research

For the reproduction occurring during training in the US, US law applied under Article 8(1) of the Rome II Regulation. The chamber highlights a private international law point that extends beyond the resolution of this particular case: the Rome II Regulation applies as a so-called loi uniforme and therefore refers not only to the law of EU member states, but also to the law of third countries such as the US. The chamber then determined the applicable US law itself, ex officio, under Section 293 ZPO, expressly declining to obtain an expert opinion: it did so on the basis of the text of the U.S. Copyright Act and relevant case law, drawing, among other things, on the library of the Max Planck Institute for Innovation and Competition in Munich. The chamber also had to close a conflict-of-laws gap with respect to the claim for information asserted in this context: while US law addresses requests for information procedurally, through pre-trial discovery, German procedural law has no equivalent instrument. The chamber addressed this by applying Section 242 BGB by analogy, to close the resulting gap in the applicable rules.

Fair Use – The Four Factors Under Warhol

The chamber examined all four factors under 17 U.S.C. § 107 in light of the Supreme Court's decision in Warhol (Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023)), and found that each individual factor weighed against the defendant.

On the first factor, the purpose and character of the use, the chamber found that Suno had not created new musical works with the outputs at issue, but had instead generated recordings that closely resembled the originals, and had therefore not transformed the works. In addition, the chamber weighed the circumvention of the Rolling Cipher as a violation of the DMCA's anti-circumvention provision (17 U.S.C. § 1201(a)(1)(A)), which it treated as evidence of bad faith conduct feeding into the assessment. The chamber expressly draws a parallel to Bartz v. Anthropic, where the fact that the works originated from pirated copies already weighed against a finding of transformative use, and cites that court's statement that the outcome would have been different had the outputs at issue there been infringing. That was precisely the case with Suno.

The second factor, the nature of the work used, likewise weighed against Suno in the chamber's view, because the outputs drew not merely on facts or ideas but on the creative elements of the works, a parallel the court also drew in Kadrey v. Meta. On the third factor, the amount and substantiality of the portion used, the chamber noted that this did not involve non-public intermediate copies of the kind recognized as fair use in software reverse engineering, but rather works that became publicly accessible through the outputs. On the fourth factor, market effect, the chamber relied on actual market substitution, pointing even to publicly available YouTube tutorials showing users how to create cover versions of well-known songs using Suno. The burden of proving the absence of market harm lay with the defendant, which, in the chamber's view, had not discharged that burden.

Legal Consequences: Information, Damages, and Publication of the Judgment

In addition to the injunctive relief, the chamber awarded GEMA a claim for information regarding the acts of use undertaken since 1 July 2023, as well as a declaration of liability for damages, the latter based on 17 U.S.C. § 504(a) for the reproduction during training in the US. There is also a claim rarely seen in German copyright proceedings: GEMA may publish the operative part of the judgment, at the defendant's expense, in the Süddeutsche Zeitung within six weeks of the judgment becoming final. The defendant was further ordered to pay pre-litigation legal fees of EUR 5,049.70. The chamber rejected the defendant's request to stay the proceedings and refer the matter to the CJEU under Article 267(2) TFEU, holding that the EU law questions concerning reproduction and public communication had already been sufficiently clarified by existing CJEU case law.

Assessment and Outlook

The judgment was issued at first instance and is not yet final. As to timing: the Bartz v. Anthropic proceedings, to which the chamber repeatedly refers, were concluded on 20 July 2026 through a court-approved settlement covering roughly 482,000 books at approximately USD 3,000 each. For providers of AI-based content generators, the new judgment now provides a clear direction: in the Munich Regional Court's view, it is not the abstract transformativeness of a training method that determines the availability of a fair use defense, but the actual similarity between the specific outputs generated and the protected original works. The extent to which German courts will engage substantively with foreign law in future cases where training takes place outside the EU is likely to matter well beyond this individual case.

If you have questions regarding the copyright assessment of AI training data, we would be glad to discuss the concrete implications of this decision for your practice.