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
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