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Paul Zimmerman
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German High Court Copyright Decision Indicates Potential Limits on Sample Clearance Requirements 

Concluding nearly two decades of litigation, Germany's highest court has now ruled in favor of a hip-hop artist who used a two-second sample of music from the pioneering electro-pop band Kraftwerk without first obtaining consent or a license to use the sample. Ralf Hütter of Kraftwerk filed suit against Moses Pelham, the producer of the song "Nur Mir" (Only Me) by Sabrina Setlur, for infringing the copyright of Kraftwerk's 1977 recording, "Metal on Metal.”  The song's highly recognizable drum loop comprises a foundational thematic element of the group's "Trans Europe Express" album, and has been paid extensive tribute by artists who used imitative musical phrasing going back to the early 1980's electronic music scene. The two-second sample is featured throughout the allegedly infringing recording. Hütter alleged that Pelham's nonconsensual use constituted copyright infringement. Sampling, in which material of one's own or of others' creation is reused, is a common stylistic element in contemporary music, particularly in hip-hop.

In a surprising decision following several lower court rulings in Kraftwerk's favor, the German Federal Constitutional Court ruled that the impact on Kraftwerk did not outweigh "artistic freedom.” In 2006, Setlur and Pelham, along with music producer Martin Haas, were directed to remove the piece from the market and pay a penalty. Dissatisfied, Kraftwerk filed another suit demanding a higher penalty payment and won again in 2012 at the Federal High Court of Justice in Berlin, when the Court again agreed with Hütter and increased the penalty. However, the Constitutional Court has now remanded the case back to the federal court, finding that blocking Pelham's use of the sample would "practically exclude the creation of pieces of music in a particular style.” The German Federal Union of the Music Industry warned prior to the Court's ruling that an attitude of "artistic freedom trumps everything" could have far-reaching consequences, and that such a position "would be grist to the mill for those who claim that everything should be allowed on the Internet.” 

The Court wrote in its ruling that, “[t]he use of external sound recordings without the authors' permission is allowable only if the new work is sufficiently different from the borrowed tones or sounds that it is to be seen as autonomous," indicating a subjective measure for what constitutes "sufficient difference" of the work. The matter's final disposition will now be decided in a suit filed by Setlur and Pelham at the German Constitutional Court. The case is expected to deal with the limits of artistic freedom and how different "borrowed" sampled audio material must be from the original to be considered original, and is sure to be closely watched for its potential implications for U.S. and other jurisdictions' copyright laws as the issue of audiovisual content licensing consumes an ever greater and more frustrating share of content creators' resources.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.