The admis­si­bi­li­ty of samples

Mixer Sampling_900x1200In a case invol­ving well-known musi­ci­ans, the Fede­ral Con­sti­tu­tio­nal Court is curr­ent­ly con­side­ring the ques­ti­on of the ext­ent to which unso­li­ci­ted sam­pling is per­mis­si­ble(Ref.: 1 BvR 1585/13). The decis­i­on is expec­ted this year and is likely to have a major impact on the music mar­ket.

The well-known Ger­man band “Kraft­werk” had sued the pro­du­cer Moses Pel­ham under civil law and twice got right up to the Fede­ral Supre­me Court(Az: I ZR 112/06 and I ZR 182/11). The pro­du­cer had sam­pled sounds from Kraftwerk’s musi­cal works wit­hout con­sent and used them for his own pie­ces. Pro­du­cer Moses Pel­ham was orde­red to cea­se pro­duc­tion and dis­tri­bu­ti­on and to sur­ren­der the records in ques­ti­on, des­troy them and pay dama­ges. The pro­du­cer and the sin­ger of the song, Sabri­na Set­lur, and eight other musi­ci­ans are now defen­ding them­sel­ves against this with a con­sti­tu­tio­nal com­plaint befo­re the Fede­ral Con­sti­tu­tio­nal Court. It’s about the track “Nur mir” by Sabri­na Set­lur from 1997. It is based on a loop (a con­ti­nuous rhythm figu­re) from the song “Metall auf Metall” by Kraft­werk from 1977. The dis­pu­ted sequence is only 2 seconds long.


This pro­ce­du­re is cal­led sam­pling. It is quite a com­mon tech­ni­que in music pro­duc­tion. In this pro­cess, a usual­ly very short part is taken from an alre­a­dy exis­ting song and incor­po­ra­ted into a new work. As a rule, the remo­ved part is still pro­ces­sed and adapt­ed to the own pie­ce. It is con­tro­ver­si­al whe­ther and when exact­ly this method is per­mis­si­ble.

ancil­la­ry copy­right vs. artis­tic free­dom

The musi­ci­ans of Kraft­werk are of the opi­ni­on that the dis­pu­ted pie­ce con­sti­tu­tes an inf­rin­ge­ment of their explo­ita­ti­on rights pur­su­ant to Sec­tion 85 (1) sen­tence 1 of the Copy­right Act. This was also the view of the Fede­ral Court of Jus­ti­ce. Even the use of the smal­lest excerp­ts con­sti­tu­tes an encroach­ment on the ancil­la­ry copy­right and thus requi­res con­sent. An excep­ti­on to this only exists under Sec­tion 24(1) of the Copy­right Act (“Free Use”) if the rele­vant part of the play can­not be repro­du­ced in the same way. In the pre­sent case, howe­ver, this does not app­ly accor­ding to the fin­dings of the lower courts.

The Ger­man govern­ment, howe­ver, takes a dif­fe­rent view. A repre­sen­ta­ti­ve of the Fede­ral Minis­try of Jus­ti­ce explai­ned in the pro­cee­dings befo­re the Fede­ral Con­sti­tu­tio­nal Court that the smal­lest snip­pets of sound are not cover­ed by the ancil­la­ry copy­right. The com­plainants also con­sider their actions to be cover­ed by artis­tic free­dom pur­su­ant to Artic­le 5 (3) sen­tence 1 of the Ger­man Basic Law. The con­sent requi­re­ment for the extra­c­tion of the smal­lest audio tracks alo­ne vio­la­tes artis­tic free­dom. In any case, sam­pling is such a minor inter­fe­rence wit­hout eco­no­mic dis­ad­van­ta­ges that the ancil­la­ry copy­right must take a back seat to artis­tic free­dom. The exemp­ti­on pro­vi­si­on under Sec­tion 24(1) of the Copy­right Act would also not do jus­ti­ce to artis­tic free­dom, as it is not spe­ci­fic enough and thus unsett­les the music crea­tors as to whe­ther their actions are per­mis­si­ble. Over­all, crea­ti­ves would be too rest­ric­ted in their work becau­se they would no lon­ger be able to deal with recor­dings from the past. Also the demand to pro­du­ce the part in ques­ti­on its­elf does not make sen­se, sin­ce a refe­rence to the ori­gi­nal pie­ce is sought.


So far, the Fede­ral Con­sti­tu­tio­nal Court has not con­clu­si­ve­ly cla­ri­fied the legal situa­ti­on regar­ding sam­pling. The expec­ted ruling is expec­ted to have a major impact on future music pro­duc­tions. In addi­ti­on, other sam­pled artists could also sue other com­po­sers depen­ding on the out­co­me of the case. Due to the uncer­tain­ty of the legal situa­ti­on and the wide­spread use of sam­pling in today’s music, espe­ci­al­ly in hip-hop, cla­ri­fi­ca­ti­on by the Supre­me Court is wel­co­me.

If you have any ques­ti­ons or need assis­tance with a dis­pu­te regar­ding copy­right or ancil­la­ry copy­right inf­rin­ge­ment, plea­se feel free to cont­act us by pho­ne at 0221–4201074, by email at info@rehkatsch.de, or sche­du­le an appoint­ment with our law firm.

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