German Constitutional Court sends sampling saga into another loop

Moses took it to the highest court

In 1997, German music producer Moses Pelham took a two second sample from Kraftwerk's 1977 song "Metall auf Metall" and used it as a continuous loop for the song "Nur mir" performed by Sabrina Setlur. In 2004, Kraftwerk sued Pelham for violation of their phonogram producers' rights and obtained an injunction against the distribution of "Nur mir". The case went all the way to the Federal Court of Justice (BGH), which held in 2008 that even sampling the "tiniest sliver" ("kleinste Tonfetzen") of a record infringed the record producer's right (§ 85(1) German Copyright Act). The defence of Article 24 Copyright Act (Freie Benutzung) was in principle applicable, but required that it was not possible to recreate the sampled sound without copying from the original recording. The BGH sent the case back to the lower court for the factual determination whether it was possible to recreate the sampled sound in the specific case.

Sabrina does not Settlur

The lower court found that it was indeed possible for the average music producer to recreate the same sound without sampling, and in 2012, the BGH dismissed another appeal by Pelham against that decision. It namely held that its interpretation of the law did not violate the constitutional freedom of art (Kunstfreiheit, Article 5(3) Grundgesetz).




Pelham took the case to the German Constitutional Court in Karlsruhe, and won. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it 

Lost its steam on appeal

was very time consuming and prohibitively complicated. The effect of the sampling on the commercial exploitation of the original song, on the other hand, was minimal. On balance, the Federal Court of Justice's interpretation of the law violated freedom of art. The case was sent back to the BGH for the BGH to find a way to take into account the sampling artists' protected freedom of art.

I think the Constitutional Court got it right. For already famous musicians with the necessary financial means, clearing all samples may be possible. For up and coming hip hop artists, requiring the phonogram producer's permission to use even "the tiniest sliver" of a published recording would mean the end of producing. Copyright should further the arts, not hinder it.