European Court Of Justice sides with Kraftwerk in sampling case

May 2020

COPYRIGHT: The European Court of Justice has sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union.


Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around a two-second snippet of Kratfwerk’s “Metall auf Metall” used as a loop.


CMU Daily reports that In 2012, Germany’s Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of ‘Metal On Metal’ was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham’s “artistic freedom” had to be considered – and that the negative impact on Kraftwerk caused by the uncleared sample wasn’t sufficient to outweigh the sampler’s artistic rights. The case was then referred to the CJEU.


Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion “A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself” adding “Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram”.


The CJEU has now said that sampling a sound recording, however short a snippet the sampler takes, needs approval from the copyright owner of the original track. 

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The court said in a statement: “Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.


The CJEU did consider artistic freedom, adding a slightly odd twist to its own ruling, saying that if the sampler changes the sample to the extent it becomes unrecognisable in the final track, that may not be an infringement: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction'” in a move to “properly balance” the rights of an intellectual property owner with the rights of artistic freedom. The FT reported that Florian Drücke, chairman of German musician’s union BVMI, said the ruling was clearly in favour of the copyright holder, while also defining when artistic freedom would override those rights.

https://www.ft.com/content/0e566ad2-b211-11e9-8cb2-799a3a8cf37b

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