On 29 July 2019, the Court of Justice of the European Union (CJEU) ruled on the copyright implications of sampling in music and established criteria as to when sampling falls within the scope of artistic freedom. Sampling is taking a portion of a sound recording and reusing it in a different song. The case was brought before the CJEU following a two-decades-long legal dispute between German electro-pop band Kraftwerk and German producer Moses Pelham.

The Facts of the Case

The dispute underlying the case arose in 1997 when Pelham sampled a sequence of two seconds from Kraftwerk’s song “Metall auf Metall,” played it on a loop and used it as the continuous rhythmic layer for a rap song he produced. In two decisions, the German Federal Court of Justice ruled that the unpermitted use of a two-second sample constitutes an infringement of Kraftwerk’s (neighbouring) right as producers of the original sound recording (section 85 para. 1 of the German Copyright Act).

Following a successful constitutional complaint, based on the right of artistic freedom, against the Federal Court of Justice decisions, the Federal Court of Justice decided to stay the proceedings and referred to the CJEU several questions, such as whether a “phonogram producer” can prevent another person “from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram.”

The CJEU Ruling

The CJEU held that a phonogram producer’s exclusive right to reproduce and distribute his or her phonogram allowed him, in principle, “to prevent another person from taking a sound sample, even if very short,” and include it into another sound sequence. However, taking into account “freedom of the arts,” a phonogram producer could not assert any rights when that sample was included in a sound sequence “in a modified form unrecognisable to the ear.” What degree of modification is necessary to make a sound sample “unrecognsiable” and from whose angle (that of the average consumer or of someone with knowledge of music) was left open by the Court.

In another aspect of the decision, the CJEU emphasized that national EU legislators are not allowed to limit a phonogram producer’s rights beyond the scope of Art. 5 of the “InfoSoc Directive” (2001/29/EC). Therefore, it is unclear whether an exception to copyright can still apply in cases in which the appropriated part of a work disappears within the new creation (section 24 para. 1 of the German Copyright Act). However, the CJEU stated that the use of a sample may be covered by a “quotation” exception, provided that the use of the sample “has the intention of entering into dialogue with the work from which the sample was taken.”

This article was originally published on AllAboutIP – Mayer Brown’s blog on relevant developments in the fields of intellectual property and unfair competition law.