German Federal Constitutional Court to Rule on Legality of Sampling in Music

By Benjamin Beck and Konstantin von Werder on December 3, 2015Posted 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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