Some months ago, various artists and music production companies have filed a constitutional complaint with the German Federal Constitutional Court against, inter alia, two Federal Supreme Court rulings (I ZR 112/06, I ZR 182/11) that held that sampling of a two second song extract was not admissible under the German Copyright Act. In their constitutional complaint, the artists and music production companies argue that these rulings violate their fundamental right to artistic freedom enshrined in Article 5 para. 3 of the German Basic Law. On 25 November 2015, an oral hearing took place. A decision by the Federal Constitutional Court is expected in early 2016.
The facts of the case(s) before the Federal Supreme Court were as follows: In 1977, German band 'Kraftwerk' released a song called 'Metall auf Metall', which they also produced. The defendants sampled a sequence of two seconds from 'Metall auf Metall', put it on a loop and used it as the continuous rhythmic layer for a rap song. The Federal Supreme Court concluded that this act constitutes an infringement of Kraftwerk's neighbouring right as producers of the sound recording 'Metall auf Metall' (section 85 para. 1 of the German Copyright Act). The 'free use' exception (section 24 para. 1 of the German Copyright Act) was not applicable in this case because, in a nutshell, it would not have been unreasonably cumbersome for the defendants to produce a 'sound-alike' rhythm sequence.
Tags: Artistic Freedom, Copyright Infringement, Metall auf Metall
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2015. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.