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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