In 2013, several artists and music production companies filed a constitutional complaint with the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) against two Federal Court of Justice (Bundesgerichtshof, BGH) rulings (I ZR 112/06, I ZR 182/11) that held that the sampling of a two-second sound sequence was not admissible under the German Copyright Act (UrhG). In music, “sampling” is the act of taking a portion of one sound recording and reusing it in a different song or piece. Sampling is particularly common in modern hip-hop and electronic music.

The complainants argued that the Federal Court of Justice rulings violated their fundamental right to artistic freedom enshrined in Art. 5 para. 3 of the German Basic Law (Grundgesetz, GG). On 31 May 2016, the First Senate of the Federal Constitutional Court granted the constitutional complaint.

Earlier Cases Before the Federal Court of Justice

In 1977, the German band (and recent Grammy honorees) Kraftwerk released a song called “Metall auf Metall,” which they also produced. The defendants sampled a sequence of two seconds from “Metall auf Metall,” put the sample on a loop and used it as the continuous rhythmic layer for a rap song. The Federal Supreme Court ruled that this act constituted an infringement of Kraftwerk’s copyright-related right as producers of the original sound recording (sec. 85 para. 1 of the German Copyright Act). The “free use” exception (sec. 24 para. 1 of the German Copyright Act) was not considered applicable in this case because, essentially, it would not have been unreasonably cumbersome for the defendants to produce a “sound-alike” rhythm sequence.

Key Considerations of the Federal Constitutional Court

The Federal Constitutional Court held that where the act of sampling only slightly limited the possibilities of exploitation, the interests of the holder of a copyright (or a related right of the phonogram producer) may have to cede in favour of artistic freedom.

The presumption by the Federal Court of Justice that even the inclusion of a very brief sound sequence interfered with Kraftwerk’s right to protection if a sound-alike sequence could have been produced did not, in the eyes of the Federal Constitutional Court, pay adequate attention to the right to freedom of artistic expression. There was no evident risk that Kraftwerk would suffer from a decline in sales through the adoption of the sound sequence into a song that did not show much similarity to the original sound recording. Only in cases of a high degree of similarity between the songs at issue could one actually presume that the new work will compete with the original work.

The case was sent back to the Federal Court of Justice to allow it to give constitutionally appropriate consideration to both the freedom of artistic activity and the protection of the phonogram producer’s property rights. In its judgment, the Federal Constitutional Court also emphasized that the Federal Court of Justice, first of all, has to assess whether, due to the primacy of application of European Union law, there was still room for the application of German law. The final words in this matter have yet to be spoken.

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.