Moses Pelham, Kraftwerk and sampling

Moses Pelham and Kraftwerk have been in dispute for over 20 years concerning a 2-second audio sequence. May audio fragments be used for one's own musical pieces? Is sampling permissible or does it infringe the rights of the sound recording producer?

The musicians dispute a short audio sequence from the song "Metall auf Metall" by the band Kraftwerk, released in 1977. Music producer Moses Pelham copied the audio snippet for the piece "Nur mir" by Sabrina Setlur and laid it down as a groove with continuous repetition.

The Federal Court of Justice (BGH) initially confirmed the decisions of the lower courts and ordered Pelham to cease and desist and to pay damages. The Federal Constitutional Court (BVerfG) upheld the constitutional complaint of Moses Pelham against the Federal Court of Justice (BGH) judgment. Finally, the Federal Court of Justice (BGH) suspended proceedings in 2017 and referred several questions to the Court of Justice of the European Union (EuGH) (see our contribution here).

Decision of the Court of Justice of the European Union (EuGH) – Sampling may be permissible

By judgment of 29.07.2019 – C-476/17 (Press Release No. 98/19) the Court of Justice of the European Union (EuGH) has now ruled on the questions referred by the Federal Court of Justice (BGH).

The Court of Justice of the European Union (EuGH) first pointed out that sound recording producers have the exclusive right to permit or prohibit the reproduction of their sound recordings in whole or in part. According to this, the reproduction of – even only a very short – audio fragment extracted from a sound recording constitutes in principle a partial reproduction of that sound recording. Such reproduction falls within the exclusive right of the sound recording producer.

However, reproduction does not occur if a user, in exercise of his artistic freedom, extracts an audio fragment from a sound recording in order to incorporate it in altered and unrecognizable form when heard in a new work.

If, on the other hand, all or a substantial part of the sounds fixed in the sound recording are taken over, then it is a copy of the sound recording for which the sound recording producer has an exclusive reproduction right. Musical fragments which are transferred from the sound recording, possibly in altered form, in order to create a new independent work are not such copies.

Furthermore, the Court of Justice of the European Union (EuGH) ruled that the German provision regulating the right to free use is not compatible with Union law. Exceptions and limitations to the rights of rights holders are exhaustively regulated in Union law.

Finally, the Court of Justice of the European Union (EuGH) established that an audio fragment which reveals the work from which it was taken may constitute a quotation under certain circumstances. This is in particular the case if the use is aimed at interacting with that work. If the work is not recognizable, the use of the fragment does not constitute a quotation.

Conclusion

The decision of the Court of Justice of the European Union (EuGH) is nuanced. Sampling can constitute an infringement if all or a substantial part of the sounds of a work are taken over. If, on the other hand, only musical fragments are taken over in order to create a new independent work, no impermissible copy occurs. If the original work is no longer recognizable, this does not constitute a quotation either.

Now the decision of the Federal Court of Justice (BGH) is pending, in which the guidelines of the Court of Justice of the European Union (EuGH) must be observed. In any event, free use does not come into consideration.