Germany’s Highest Court Approves Music Sampling

June 6, 2016

Music CopyrightIn a recent decision, Germany’s highest court, the Federal Constitutional Court, approved music sampling, the practice of integrating clips of different recordings into a recorded musical work.  The court concluded that the rights of copyright owners must be balanced with the goal of encouraging and promoting artistic freedom.

In 1997, Moses Pelham, a German music producer integrated a two second clip from a 1977 recording made by the group, “Kraftwerk,” into a recording he was producing.  Lead singer for Kraftwerk, Ralf Huetter, sued Pelham for copyright infringement.

In 2012, the German Federal Court of Justice ruled in favor of Huetter, finding copyright infringement.  The court determined that even the small sample of the previously recorded work which was used constituted infringement.  The Court of Justice awarded damages and issued an order blocking distribution of Pelham’s recording.

Matsuura Blakeley BannerIn its 2016 ruling, the Federal Constitutional Court concluded that the Court of Justice had not conducted a complete analysis of the case.  The Constitutional Court determined that when there is direct use of copyright protected material, the impact of that use upon the owner of the protected material must be examined.  If that impact is “negligible” then the use of the material should be permitted.

The Constitutional Court accepted the basic argument that the rights of copyright owners must always be balanced with the public interest goal of encouraging and facilitating artistic freedom.  In this case, the Constitutional court was persuaded that the work created by Pelham was not in direct competition with the Kraftwerk and the impact of the limited sampling involved on the copyright owner was negligible.

Music sampling is now a widely applied technique in a variety of musical genres and styles.  The German Constitutional Court’s action in this case offers important recognition of such sampling as an important form of artistic expression.

This case also illustrates the need for courts and other legal institutions to interpret copyright law in a manner which reasonably balances sometimes conflicting rights in the digital environment.  The Constitutional Court did not grant unlimited permission for music sampling.  Instead, it recognized the potential artistic value of sampling, and it approved sampling only in those contexts in which the use of the copyrighted material does not have a notable adverse impact on the owner of that material.

The German Constitutional Court has adopted a strategy which effectively and appropriately balances conflicting rights in the copyright context.  This type of approach provides a useful model for legal authorities in all jurisdictions who now face the same issue and challenge.