Posted in Copyrights, Court Judgments
In music, “sampling” is the act of taking a portion of one sound
recording and reusing it as an instrument or a sound recording in a different
song or piece. In 2013, several artists and music production companies filed a
constitutional complaint with the German Federal Constitutional Court
against two Federal Supreme Court rulings (I ZR 112/06, I ZR 182/11) that held that sampling of a two second song extract was not
admissible under the German Copyright Act.
In their constitutional
complaint, the artists and music production companies argue that these rulings
violate their fundamental right to artistic freedom enshrined in Article 5
para. 3 of the German Basic Law. On 25 November 2015, an oral hearing took
place. A decision by the German Federal Constitutional Court is expected in
early 2016.
The facts of the earlier cases before the Federal
Supreme Court were as follows: In 1977, the German band 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 constitutes an infringement of Kraftwerk’s
neighbouring right as producers of the original sound recording (section 85
para. 1 of the German Copyright Act). The “free use” exception (section 24
para. 1 of the German Copyright Act) was not applicable in this case because,
essentially, it would not have been unreasonably cumbersome for the defendants
to produce a “sound-alike” rhythm sequence.
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