Recently, the two highest courts of Germany – the Federal Constitutional Court and the Federal Court – have each rendered important judgments on music sampling and the legal questions this technique poses regarding copyright law and fundamental rights.
Balancing competing interests: the German Federal Constitutional Court’s ruling on “Metal auf Metall”
On 31 May 2016, the German Federal Constitutional Court (Bundesverfassungsgericht – BverfG) decided on a constitutional complaint in a long-running case relating to the Kraftwerk song “Metall auf Metall” (case no. 1 BvR 1585/13). This constitutional complaint concerned the question whether the interference with the copyright-related rights of phonogram producers due to the sampling of short sequences of phonograms can be justified in the light of the constitutionally protected freedom of artistic expression pursuant to Article 5 (3) sentence 1 of the German Constitution (Grundgesetz).
What was the dispute about?
Prior to the constitutional complaint, two founding members of Kraftwerk had initiated civil proceedings against the music production company, the two composers and the singer of the song “Nur hier”. The claim related to a two-second sequence that had been sampled from Kraftwerk’s song “Metall auf Metall” used in Sabrina Setlur’s 1997 song “Nur hier”.
The civil courts held that the sampling of extremely short parts of a soundtrack constituted an infringement of the rights of the phonogram producers pursuant to Section 85 German Copyright Code (Urheberrechtsgesetz – UrhG), which could not be justified by the right to free use according to Section 24 (1) UrhG.
The Federal Court of Justice recognised the provision of Section 24 (1) UrhG as an exception to Section 85 UrhG. However, it put forward a narrow interpretation of this provision. For applying Section 24 UrhG, it assumed the unwritten prerequisite that the original sequence cannot be reproduced in a way that sounded like the original one. This, by implication, would mean that it a phonogram producers’ rights would be infringed when there is even the possibility that musicians could reproduce the sample in question.
The role of the Federal Constitutional Court
The review of decisions by the Federal Constitutional Court is in general limited to reviewing whether the courts involved in the proceedings have sufficiently considered the significance of the constitutional rights relevant for the specific case. The court does not check whether the challenged decisions comply with the provisions that the courts involved have to apply.
In the Kraftwerk case, the Federal Constitutional Court ruled that the challenged decisions were unconstitutional as they did not sufficiently take into account the significance of the complainants’ freedom of artistic expression. It held that the interests of both parties – the economic interests in exploiting the phonograms by the phonogram producers on the one hand and the interest in creating new musical work by the musicians on the other hand – are both addressed in the UrhG and have to be balanced without restricting one of the interests excessively.
Section 85 UrhG is a copyright-related right. It protects the economic, organisational and technical performance of phonogram producers. It stems from the constitutional right of the protection of property. Phonograms and the sequences of notes are, however, not subjected to protection by this provision. The Federal Constitutional Court noted that the concept underlying Section 24 UrhG is the encouragement of the progress of artistic work. It has its roots in the constitutionally protected freedom of artistic expression. Sampling is one of the key style elements of hip-hop. It is therefore essential and indispensable for the creative process and protected by the freedom of artistic expression.
Moreover, the Federal Constitutional Court decided that the narrow interpretation of Section 24 UrhG by the Federal Court of Justice was not suitable for achieving a proportionate balance between the interests at stake. The consequence of this finding would be that musicians either would have to reproduce the sequence or obtain a license for using it. In either case, the freedom of artistic expression would not be taken into account sufficiently and thereby restricted substantially.
Even if the musicians are willing to obtain a license and pay the respective license fees, the phonogram producers could deny a license without giving reasons. The reproduction of sequences is also not an equivalent alternative to sampling which is a key style element of hip-hop. The sampled sequence marks the starting point of the process of creation. In addition, the reproduction of the sequence can be very complex or if the reproduction of an equivalent sequence is not possible the musicians will have difficulties proving this.
Considering all of this, the Federal Constitutional Court came to the conclusion that the artistic interests of the musicians outweighed the economic exploitation interest of the phonogram producers.
What does this decision mean?
This decision outlines that a restriction of the use of samples in this case puts considerable restraints on the development of musical works thereby infringing the freedom of artistic expression excessively, while a licence-free use of samples does not entail considerable economic disadvantages for the phonogram producers, only slightly touching their property rights. In the present case, there was no danger of a decline in sales with regard to Kraftwerk’s song “Metall auf Metall” brought about by the use of the sample in the complainants’ song “Nur mir”.
This may be different in cases where the newly created musical work, due to its similarities to the original phonogram, does compete with the original. The criteria for judging whether a competition could arise are: the extent of modification of the original work, the timespan between the release of the original and the newly created work, the significance of the sampled sequence, the economic damage for the phonogram producer, and the fame of the work as such.
Distinguishing the rights of author and composer: the German Federal Court’s ruling on “Goldrapper”
In its decision of 16 April 2016, the German Federal Court of Justice (Bundesgerichtshof – BGH) dealt with the question whether the sampling of short music sequences is an infringement of rights that authors have with respect to their musical work (case no. I ZR 225/12). It also decided about the prerequisites under which co-authors are able to claim copyright infringements.
What was the dispute about?
A French gothic band “Dark Sanctuary” sued the German rapper “Bushido” for using a number of music sequences of approximately 10 seconds out of the band’s original songs. The rapper used these in 13 of his songs without the band’s consent. He copied the music sequences electronically without using the lyrics and arranged these sequences into a continuously repeated rhythm, or loop. To this loop, he added a drum beat and his own vocals. The first claimant was the composer of the music and the other claimants were authors of the lyrics.
While the Regional Court of Hamburg (Landgericht) in the first instance and the Higher Regional Court of Hamburg (Oberlandesgericht) in the second instance mainly decided in favour of the band, the Federal Court of Justice with regard to the claims of the composer referred the matter back to the Higher Regional Court of Hamburg for a reassessment and, with regard to the claims of the authors of the lyrics, dismissed the lawsuit.
The Federal Court of Justice held that the authors of the lyrics had not had their copyright infringed. Section 2 UrhG grants the protection of works. As the rapper did not use the lyrics, he did not interfere with the authors’ right to protection of their literary work.
They were also not entitled to claim an infringement as co-authors of the songs. Co-authorship is protected by the provision of Section 8 UrhG; however, only under where several people jointly create one piece of work and cannot individually exploit their rights. The lyrics and the composition though can be exploited individually, so Section 8 did not apply in this case.
In disagreement with the lower courts the Federal Court of Justice also denied a copyright infringement according to Section 9 UrhG, which provides that where several authors jointly create a piece of work, each author has the right to demand the consent for the publication, exploitation and the change of the work, if according to the principles of good faith the consent of the others can be expected.
The court held that this provision does not concern claims against third parties, but rather the agreement among the authors themselves. With respect to copyright, the notion of the UrhG is the protection of single works and authors’ moral rights. No protection is granted to the unity of different types of work.
With respect to the composer, the Federal Court of Justice held that the findings of the Higher Regional Court were not sufficient to affirm a copyright infringement. In particular, it found that the court could not judge whether the music sequences of approximately 10 seconds had attained the required threshold of originality pursuant to Section 2 (2) UrhG and if they did, whether the songs of the rapper could be seen as his legal and independent work created in the free use of the composer’s work pursuant to Section 24 (1) UrhG.
It is generally acknowledged that the threshold of originality is assessed by firstly determining the objective elements of a work and secondly judging whether the overall impression created by these objective elements reaches a level that justifies the protection by the copyright law. The judgement of the overall impression is principally formed by taking the perspective of people who are to some extent acquainted with and open to musical issues.
The Federal Court of Justice decided that the Higher Regional Court of Hamburg did not sufficiently state the objective elements, such as the melody, rhythm and instrumentation, that characterise the musical sequences. Furthermore, it decided that the Higher Regional Court of Hamburg in this matter should not have based its judgement on the overall impression of the musical sequences on its own aural impression and perspective. The musical experience and experience of the judges involved as members of a specialised senate for intellectual property did not qualify them to make this judgment. Instead, the court should have sought the opinion of an expert witness.
As a result, the case was remitted back to the Higher Regional Court to re-assess the claim.
What is protectable?
Short musical sequences are principally capable of being protected by copyright. There has to be, however, a clear differentiation between those short musical sequences that reach the necessary threshold of originality and those that do not. Sequences that are not capable of protection may be solely basic elements of musical work, using formal elements that either base on the theories of harmony, rhythm and melody or belong to the common musical knowledge like sequences of notes or generally known rhythmic structures.