European Court Of Justice Rules In Favor Of Sampling!
A landmark decision on sampling music after 22 years…
…and it’s still not over just yet.
In 1977 the group Kraftwerk, who were pioneers in electronic music, created a song called “Metall auf Metall” (metal on metal). You can listen to it right here.
It contains a short rhythmic sample that 20 years later was used by the duo Moses Pelham and Martin Haas. They created a song for a female rapper of that time, Sabrina Setlur, called “Nur Mir” (only mine). Take a listen here for comparison. The used sample is of quite simple structure and lasts about 2-3 seconds.
In a later interview Moses Pelham had said he found the sample in a sample library and wasn’t aware of its origin. The sample was recognizable mainly in the beginning of “Nur Mir”, the rest was heavily superimposed by e-guitars and bass sounds.
However, at least two members of Kraftwerk were determined to sue for omission, copyright infringement damages as well as for the destruction of all physical copies of the song. In 1997, Ralf Hütter and Florian Schneider-Esleben from Kraftwerk took Moses, Martin and their company Pelham GmbH to court.
The question was, amongst others, if sampling could be considered Fair Use.
Things took their course and the case was later submitted to the German Federal Supreme Court. This is the second highest court in Germany.
At this stage, the court agreed with Kraftwerks claim of copyright infringement. They didn’t consider the use of these 2-3 seconds as fair.
Due to the fundamental nature of the case, it was a given that Pelham and Haas would not disregard the chance of change that a ruling by the Federal Constitutional Court could bring. This was the last chance on a national level.
In 2016 the Federal Constitutional Court annulled the previous decision. The ruling stated that the issue of artistic freedom had to be considered in further depth and gave the case back to the Federal Supreme Court to do so.
This is standard procedure.
To make sure to come to a final conclusion the second time around and because of its fundamental significance, not only on a national level, the FSC submitted the case to the European Court of Justice for assessment, before ruling finally.
On July 29th 2019 the European Court of Justice took a decision. Here are the key points:
1. Unauthorized use of copyrighted material, even if it’s just the minimal amount of 2-3 seconds, can constitute punishable copyright infringement.
2. The constitutional right to artistic freedom presents a limitation to this copyright. If a user, in exercising his or her artistic freedom, takes a sample to edit and implement in an unrecognizable form, the use does not constitute copyright infringement. (Fair Use!)
One prerequisite for Fair Use is the level of creativity. If the new piece can not be considered a new work, due to a lack of new, creative input, the application of the Fair Use Principle is off the table.
According to the European Court of Justice, the song “Nur Mir” could not be considered a plain copy of Kraftwerk’s work. Only fragments had been used and those were creatively edited to the point of being unrecognizable for the most part. A “new” and “independent” work had been created.
If so – the European Court of Justice declared – the agreement or license from the copyright holder/s is not neccessary and this use does not constitute copyright infringement.
So what’s happening now?
The German Federal Supreme Court has to revise their decision, considering the ruling by the European Court of Justice. They can hardly decide differently, since rules and regulations on a European level have to be implemented on a national level.
Pelham has won against Kraftwerk, after 22 years – kudos to both sides.
Even though there have already been legal provisions for the unlicensed use of copyrighted material ( e.g. §24, §51 UrhG ), those have been interpreted very strictly so far. This ruling strengthens the Principle of Fair Use not only in Germany, but all over Europe.
But beware: Wether the use of copyrighted material can be considered Fair Use is not dependent from strict rules that apply to all cases the same way.
Cases like these are case-by-case decisions!!