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.

/TWA