Fede­ral Con­sti­tu­tio­nal Court over­turns ruling on sam­pling ban

Cologne/Karlsruhe May 31, 2016. The Fede­ral Con­sti­tu­tio­nal Court has ruled that the case of “Kraft­werk” against Moses Pel­ham for pro­hi­bi­ted sam­pling must be deci­ded again by the Fede­ral Court of Jus­ti­ce. Grea­ter con­side­ra­ti­on must be given to artis­tic free­dom.

The band Kraft­werk had sued the pro­du­cer Pel­ham after he had taken a 2‑second sequence from a Kraft­werk song wit­hout being asked in 1997 and put it as an end­less loop under a new song of his own. In 2012, the Ger­man Fede­ral Court of Jus­ti­ce ruled that this vio­la­ted Kraftwerk’s copy­right and ban­ned the sale of the song. Pel­ham and other musi­ci­ans filed a lawsu­it against the decis­i­on, clai­ming that their artis­tic free­dom had been vio­la­ted.

Today, the Fede­ral Con­sti­tu­tio­nal Court ruled (Ref.: 1 BvR 1585/13) that artis­tic free­dom was not suf­fi­ci­ent­ly taken into account in the Fede­ral Court of Justice’s ruling. Due to the short­ness of the sequence taken over, a new work had been crea­ted, from which, howe­ver, Kraft­werk would not suf­fer any eco­no­mic dis­ad­van­ta­ge. The­re is no obli­ga­ti­on to pay for sam­pling, but it could be intro­du­ced by the legis­la­tu­re, the jud­ges empha­si­zed. Fur­ther­mo­re, the EU Copy­right Direc­ti­ve would have to be obser­ved for acts of use from 2002 onwards, and a refer­ral to the Court of Jus­ti­ce of the Euro­pean Uni­on would the­r­e­fo­re be pos­si­ble.

© Evge­ny Drab­len­kov, shutterstock.com


Accor­ding to the decis­i­on of the Fede­ral Con­sti­tu­tio­nal Court, copy­right takes a back seat to artis­tic free­dom in this spe­ci­fic case. Now the Fede­ral Court of Jus­ti­ce must rule again, this time giving more weight to artis­tic free­dom. Should the Fede­ral Court of Jus­ti­ce also clas­si­fy sam­pling as per­mis­si­ble to this ext­ent, a lar­ge increase in sam­pling can be expec­ted.

If you have any ques­ti­ons about sam­pling or copy­right, plea­se feel free to cont­act us by pho­ne at 0221–4201074, by email at info@rehkatsch.de, or sche­du­le an appoint­ment with our office.

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