Free use in sound recording sampling?

The First Civil Senate of the Federal Court of Justice (BGH) responsible for copyright law had once again to decide on the permissibility of using recorded sounds and tones (sound recording sampling) by way of so-called free use for one's own purposes.

The plaintiffs – members of the music group "Kraftwerk" – published in 1977 the sound recording "Kraftwerk – Trans Europa Express". This sound recording contains, amongst other things, the title "Metall auf Metall". Two of the defendants composed the title "Nur mir", which the third defendant recorded with the singer Sabrina Setlur in two versions. Both versions were published on a sound recording in 1997.

The plaintiffs assert that the defendants electronically copied ("sampled") a rhythm sequence of approximately two seconds in length from the title "Metall auf Metall" and underlaid the title "Nur mir" with this sequence in continuous repetition, although it would have been possible for them to record the adopted rhythm sequence themselves. Furthermore, the plaintiffs assert that the defendants thereby infringed their rights as sound recording manufacturers and have sued them for infringement of copyright and neighbouring rights amongst other things for injunctive relief and a declaration of liability for damages.

Decision of the Federal Court of Justice (BGH)

After the Regional Court (LG) convicted the defendants and the Higher Regional Court (OLG) upheld the judgment of the Regional Court (LG) on the defendants' appeal, this judgment was quashed by the Federal Court of Justice (BGH) on the revision admitted by the Higher Regional Court (OLG) and the matter was remitted to the Higher Regional Court (OLG). In the reopened appellate proceedings, the conviction of the defendants was once again upheld, whereupon the Federal Court of Justice (BGH) dismissed the revision of the defendants by judgment of 13 December 2012 – (Az. I ZR 182/11 – Metall auf Metall II).

In its reasoning, the Federal Court of Justice (BGH) held that the defendants had interfered with the plaintiffs' right to sound recording production by extracting from the sound recording produced by the plaintiffs two bars of a rhythm sequence from the title "Metall auf Metall" by way of sampling and underlaying the piece "Nur mir" with this sequence. The defendants could not successfully rely on the right of free use and could not publish and exploit the work they had thereby created without the consent of the copyright holder.
According to the Federal Court of Justice (BGH), the use of foreign sound recordings without the consent of the authorised party could indeed be permitted. However, this shall only be the case if the new work maintains such a great distance from the tones or sounds taken from the used sound recording that it is to be regarded as independent. According to the case law of the Federal Court of Justice (BGH), free use is, however, excluded if it is possible to record the sound sequence recorded on the sound recording oneself. In this case, there is no justification for an interference with the entrepreneurial performance of the sound recording manufacturer.

Nor can a right be derived from fundamental rights-protected artistic freedom to use the sound recording without the consent of the sound recording manufacturer. In assessing whether it is possible to record a sound sequence oneself, the standard to be applied is whether it is possible for an averagely equipped and competent music producer at the time of using the foreign sound recording to produce his own sound recording that is equivalent to the original when used in the same musical context from the perspective of the intended audience. According to the findings of the appellate court, this was the case in the present matter.

Conclusion

Insofar as it is possible for an average music producer to produce an equivalent sound recording himself, it is impermissible to use sounds or tones recorded on a foreign sound recording by way of free use for one's own purposes.