Tuesday, July 30, 2019

European Court of Justice: Sampling is allowed if it is not recognizable when listening

Once again there is a new judgement in the long lasting dispute about the sample in Sabrina Setlur's song "Nur mir" which was produced by Moses Pelham in 1997. We've been reporting about the case since 2008. This time, no lesser than the European Court of Justice decided after the German Federal Court of Justice (Bundesgerichtshof) had referred some questions about the interpretation of the Copyright Directive (Directive 2001/29).

Members of the German electro band Kraftwerk had sued because Pelham had sampled about two seconds of a rhythm sequence from the title "Metall auf Metall" (Metal On Metal) and placed it under the title "Nur mir" (Only Me) in continuous repetition, although they would have been able to play the adopted rhythm sequence themselves. They are of the opinion that Pelham infringed their copyright-related right as a phonogram producer. Kraftwerk demanded prohibitory injunction, damages, the provision of information and the surrender of the phonograms for the purposes of their destruction.

The European Court of Justice (29 July 2019, C-476/17) ruled that the reproduction by a user of an audio fragment of a phonogram – even a very short one – is in principle to be regarded as a reproduction "in part" of that phonogram and is therefore subject to the phonogram producer's rights. If, however, a user takes an audio fragment from a phonogram in the exercise of freedom of the art in order to use it in a new work in a modified form which cannot be recognized when listening to it, such use does not, in the Court's view, constitute a reproduction of the phonogram. According to the Court, the technique of electronically copying audio fragments (sampling), whereby a user takes an audio fragment from a phonogram – usually with the aid of electronic equipment – and uses it to create a new work, is an artistic form of expression which falls within the freedom of the arts. The Court of Justice justifies its weighting in favor of the freedom of the arts by understandably stating that the opposing interpretation would, in particular, enable the phonogram producer to oppose a third party taking an audio fragment – even a very short one – from its phonogram for the purpose of artistic creation, even though such sampling would not interfere with the opportunity which the producer has of realizing satisfactory returns on his investment. In other words: Just because a song is sampled briefly doesn't mean that nobody wants to buy the original song anymore.

When excercising freedom of the arts, one may therefore, when creating a new work, take an audio fragment (sample) from a phonogram and change it in such a way that it is not recognizable in the new work when one listens to it.

In addition, the European Court of Justice found that the right under German copyright law (§ 24 UrhG) to create an independent work in the free use of another's work and to publish and exploit it without the consent of the author of the used work is contrary to the Directive because it is not an exception to copyright allowed under the Directive. Pelham could therefore not rely on the corresponding provision of German copyright law.

Furthermore, the Court found that the rules on quotations does not apply to those samples which could not be identified in the new work.

It is now up to the Federal Court of Justice to make a decision in the case on the basis of the questions answered by the European Court of Justice.

Friday, July 5, 2019

What does the new COVER.INFO logo stand for?

Originally, coverinfo.de's logo, in the letter "o", has expressed the idea of reusing since 2001: melodies come back again and again throughout history, are "recycled" again and again.

This reusing is also expressed in the logo that has been applied since 2003. The three arrows arranged in a triangle stand for recycling. The musical note stands for the melodies that are recycled in the form of cover versions or musical quotations.

This logo survived the relaunch of the website in 2007 (see in detail our anniversary article "20 Years of COVER.INFO"). This meant that the recycling logo was in use from 2003 to 2018, for almost 15 years – longer than any other at coverinfo.de.

It was now obvious to continue using the logo for the new COVER.INFO in a similar form, especially for the sake of better recognition. However, for the new website the logo did not seem modern and simple enough. Above all, the association with recycling was no longer wanted. There was a worry that the symbol would be associated with something negative, namely garbage.

The compromise then was to abstract the old logo in such a way that the old triangular shape and the musical note would be preserved, but that it could no longer be associated with garbage.

The triangle with the top pointing upwards now symbolizes the new way of representation on COVER.INFO, namely the chronological one that has replaced the table view from the old coverinfo.de: at the top there is a melody, an original. In the run of time this melody is covered or quoted more and more often by other songs. The pyramid becomes wider and wider at its base. The box under the original with the follow-up songs becomes literally longer and longer.