Moses Pelham wins constitutional complaint!

Are musicians permitted to copy short sequences from other people's songs and use them in their own musical pieces without asking the copyright holder for permission? This legal question was submitted to the Federal Constitutional Court (BVerfG) by Moses Pelham, who was prohibited by the Federal Court of Justice (BGH) from using a musical sequence from Kraftwerk's song 'Metall auf Metall' for his own composition

The constitutional complaint concerns the legal question to what extent music creators can invoke the right to freedom of artistic expression against claims based on ancillary copyright by phonogram producers when using short musical sequences from other sound recordings by means of the so-called sampling process.

In the concrete case, the Federal Court of Justice (BGH) had decided a dispute between Moses Pelham and the band Kraftwerk in favour of the copyright holder, since the adopted sequence from Kraftwerk's song 'Metall auf Metall' could not be recreated equivalently. It was a sound of two metal plates colliding, which Pelham used in a song composed for Sabrina Setlur.

In the dispute over the processing of this foreign rhythm sequence, composer and producer Moses Pelham has now filed a constitutional complaint with the Federal Constitutional Court (BVerfG) against the judgment of the Federal Court of Justice (BGH).

Decision of the Court

By judgment of 31 May 2016 – 1 BvR 1585/13 – the Federal Constitutional Court (BVerfG) decided that the BGH judgment 'Metall auf Metall' restricts the freedom of artistic expression guaranteed by the Basic Law and thereby granted the constitutional complaint.

When legally assessing the use of works protected by copyright, the interest of the copyright holders in preventing the exploitation of their works for third-party commercial purposes without permission is faced with the interest of other artists protected by freedom of artistic expression to engage in a creative process in artistic dialogue with existing works without financial risk or content restrictions. If a restriction of artistic freedom confronts an infringement of copyright that only marginally restricts the exploitation possibilities, the exploitation interests of copyright holders may have to recede in favour of the freedom of artistic engagement.

The Federal Court of Justice's (BGH) assumption that the adoption of even the smallest audio sequences constitutes an impermissible infringement of the plaintiffs' phonogram producer right, insofar as the adopted excerpt can be recreated equivalently, does not adequately take freedom of artistic expression into account. If the music creator who wishes to create a new work through the use of samples does not want to completely refrain from incorporating the sample into the new musical piece, the strict interpretation of the freedom of use by the Federal Court of Justice (BGH) places him in the alternative of either endeavouring to obtain a sample licence from the phonogram producer or recreating the sample himself. In both cases, however, artistic freedom of action and thus also cultural development would be restricted.

Conclusion

An infringement of copyright and ancillary copyright rights through sampling can be justified within the scope of freedom of artistic expression. The BGH must now decide the legal matter again. The criterion of the lack of equivalent recreatability of the adopted musical sequence must not play a role in the renewed decision.