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20 years of court battle for two seconds of music – or how to legally sample?

After exactly two decades of dispute between the classics of the German electronic music scene, Kraftwerk and hip-hop producers, M. Pelham and M. Haas, the Court of Justice of the European Union answered the question on the legality of the use of samples. To be exact, on one of the threads important in answering such a question.

Certainly, this information may be of interest to artists creating music on the basis of well-known works or on the basis of recognisable rhythms, as well as to labels and publishers. At the end of July 2019, The Court of Justice of the European Union in Case C-476/17 stated that ‘the exclusive right of a producer to authorise or prohibit the reproduction of their phonogram enables them to oppose the use by a third party of a sound sample, even a very short one, taken from their phonogram in order to incorporate that sample into another phonogram, unless that sample is reproduced in a form which is altered and unrecognisable in the ear’.

About sampling for clarification

Sampling is a technique of sound material processing which in recent years has become a permanent feature in the music creators’ workshops, especially of electronic music. It consists in using a fragment of a previously recorded music, usually lasting from a few to over 10 seconds, with the use of an appropriate instrument called a sampler. As a result, thanks to superimposing or multiplying sound samples (or just: samples) obtained in this way, the creators are able to achieve effects impossible to reproduce with the use of classical instruments. We talk about sampling more broadly when it comes to including fragments of other pieces in one’s own piece – regardless of the technique.

From a legal perspective, sampling should be considered at the level of copyright (i.e. rights to the used text and music fragments), rights to artistic performance (i.e. rights of vocalists and instrumentalists whose work has been recorded and then used in a fragment in a new work) and rights to the phonogram (i.e. producer’s rights). The judgment of the CJEU focused on the latter issue.

What’s all the fuss about?

The dispute between the artists began many years ago, in 1999, shortly after the premiere of Sabrina Setlur’s song “Nur mir”, produced by M.Pelham and M.Haas. In this piece, Kraftwerk members R. Hütter and F. Schneider recognised a characteristic fragment of their 1977 piece entitled “Metall auf Metall”. What is important, the approximately 3-second long fragment was multiplied and constitutes the background of the song “Nur mir” for most of its length. It is possible to hear it, with difficulty, though

The artists’ case has not found its final in a national court for years. It was only in recent days that the case was decided by the CJEU in its judgment of 29 July this year. In court’s opinion of 12 December 2018, which preceded the judgment, Attorney General Maciej Szpunar advocated the need to obtain the producer’s consent in order to sample fragments of the work. Especially when the fragments are used for commercial purposes, according to Mr Szpunar, there are no grounds for the producer not to take advantage of their financial investment in the creation of the work. He also emphasised the separateness of the quotation with which the sample is identified, in particular because of the lack of identification of the author and the required dialogue which the quoting piece should have with the quoted work. The Attorney’s comments seem to be correct, but it should be remembered that samples in music can be very different.

The Court of Justice has examined the question of whether the taking of a small sound sample of a phonogram constitutes an encroachment on the exclusive rights of reproduction of a phonogram by a producer – which is relevant to the dispute.

The Court finally ruled that legal sampling would require the consent of the phonogram producer, except for the cases where a sample was incorporated into a new recording in a modified and unrecognisable form. At the same time, the CJEU recalled that Member States are not free to introduce in national law broader exceptions or limitations to the rights of phonogram producers than those provided for in EU harmonisation legislation (see: Article 5 of Directive 2001/29/EC).

The commented verdict does not introduce any breakthrough changes to the world of music, but the principles of sampling set out in it will certainly be useful for artists who draw inspiration from other works. If the sound sample is modified in such a way that the resulting work is not recognisable to the human ear, it will not be necessary to obtain the relevant consent of the phonogram producer.

However, it should be borne in mind that the processing of a phonogram may constitute an infringement of personal, property and depending rights in a word/musical work or rights in a performance fixed in a phonogram. On the other hand, if the protected phonogram can be identified in a new work and the citation requirements are met, sampling may also be legal, but in such a case it is open to the question whether the conditions required by the quotation will be practical in the reality and specificity of the music industry and possible in the given circumstances.




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