Music publishing, artistes
Techdirt reports on the rather confusing state of German copyright law related to music sampling, beginning the tale back in 1977 when Kraftwerk released a track called “Metall auf Metall“ that contained a “rather distinctive bit of percussion that ran the length of the track”. Twenty years later, a German rapper called Sabrina Setlur recorded a single called “Nur Mir,” which featured a two-second loop of Kraftwerk’s percussion. In 2000, Kraftwerk took the track’s producers Pelham and Haas to Hamburg’s lower civil court for using an uncleared sample and the court agreed, finding that re-purposing even the smallest sample of a song counted as copyright infringement. The court also issued an injunction against Pelham and Haas forbidding further distribution of Nur Mir. It’s always worth remembering that in most sampling cases there will sampling of the ‘song’ – the melody, rhythm and lyrics’ and sampling of the actual sound recording itself.
For the next eight years Techdirt say “the case bounced between courts before landing in Germany’s highest civil court”, The Bundesgerichtshof (BGH), which in 2008 ruled against Kraftwerk, stating that “sampling musical notes does not, in principle, violate copyright” but conversely stating “that sampling a melody does constitute infringement, but a couple of notes taken from a previous recording used in such a way as the original melody is not identifiable – which was arguably the case in “Nur Mir” – does not. The court also found that to NOT infringe, the sample used needed “be part of a completely new musical work bearing no resemblance to the original” as, Techdirt say, “heading off any sort of Vanilla Ice-esque developments”.
The case then reverted to Hamburg’s higher regional court, the Oberlandesgericht (OLG), in order to test and apply the BGH’s formula. In August 2011, OLG agreed with the BGH’s findings but allowed Kratwerk to appeal. The regional court also made a number of findings, “setting up one of the stranger demonstrative tests ever deployed in a courtroom setting”. The first finding indicated that the court felt “Nur Mir” was sufficiently transformative, even if it contained a recognizable sample. The OLG found that “Nur Mir” possessed an entirely different character from “Metall auf Metall” even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn “Nur Mir” into an independent work according to § 24 (1) UrhG.
The second statement was “a bit more troubling”, raising questions on how exactly someone would determine a sample to be infringing, putting the weight of that decision on the hypothetical customer. According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting.
Despite finding the disputed track to be non-infringing because it was sufficiently transformative, the OLG asked itself whether the sampling should be permitted at all without clearance, especially if the sample could be reproduced with the technology in use at the time (1997). It may be worth remembering that in the USA it has been held on appeal that ANY use of a sound recording would be an infringement if not cleared, although the test for use of the melody would be based on a ‘substantial use’ test (Westbound Records and Bridgeport Music v No Limit Films (2004) cf Newton v Diamond (2003)). The OLG then found in favour of Kraftwerk (yes, I am now lost too) on key evidence provided by expert witnesses who provided evidence by “banging on pieces of metal and feeding them through a 1996 Akai sampler”. Techdirt explain: “The question at the heart of the case is how far sampling the work of other artists—a mainstay of modern hip-hop and techno—is permissible when creating new music. The answer given by the BGH is that it is only permissible if the same effect could not have been produced by the new artist himself. After various demonstrations by expert witnesses, crashing metal on metal and using instruments such as a 1996 Akai Sampler, it was shown that an imitation of the sound-bite would have been possible in 1997. So the OLG ruled in favour of Kraftwerk.
So, we have.
- Hamburg lower court ruling that uncleared sampling is not permissible – ever.
- Hamburg higher court rulingth at melody lines cannot be sampled but rhythmic samples are OK, with several caveats.
- Germany’s highest civil court declares sampling is OK only if the sample cannot be reproduced with existing technology, discarding transformative use altogether.
With Techdirt commenting “Ruling in favor of Kraftwerk and setting this bizarre precedent completely clouds the water on sampling and insinuates that a rapper utilizing a 2-second sample on single released 20 years after the original somehow makes these two tracks (and artists) interchangeable in the customers’ minds, thus damaging the market for the original artist” adding “This creates a considerable chilling effect, one that not only discourages sampling, but eliminates transformative use from the equation by disregarding the OLG’s statement that “Nur Mir” was an “independent work,” despite its recognizable sample. Anything that sounds like anything else can trigger a copyright infringement suit, whether or not an actual sample was used. Restricting sampling to “unreproducible sounds” leaves artists with little but God’s voice and the weird noises animals make when they’re happy as the only permissible sampling material.
Pelham and Haas are looking to bring this case to Germany’s constitutional court (the Bundesverfassungsgericht) under the German Federal Constitution – which provides that grants the right for art to be “informed without hindrance from accessible sources.”
My apologies for what may be lost in translation, and my thanks to my 1709 colleague Andy J for alerting me to this case.
http://www.techdirt.com/articles/20121220/19334921459/kraftwerks-12-year-lawsuit-over-2-second-sample-comes-to-bizarre-end.shtml and our article on music sampling The Song Remains The Same can for found at http://www.musiclawupdates.com/?p=199