Sampling, which in a music context means that a sound recording (phonogram) is taken from an existing recording in processed or unprocessed state and then used in a new composition, is a common tool for musicians and producers in creating music.
Copyright protects musical works created by their creator. Alongside copyright, which aims at the spiritual creation of the work itself, there are related rights. The related rights provide, among other things, protection for performing artists and producers of sound recordings (producer rights). A sampling can thus constitute an infringement of copyright as well as an infringement of the related rights if the use takes place without the consent of the creator or producer.
With regard to sampling of even very short sound sections, a starting point has been that sampling of sound sections that are not considered to constitute a use of the copyrighted work (because the sound section, for example, is too short or not original) nevertheless falls within the producer rights. For music creators who use the sampling technique, the question can be asked when it is actually allowed to sample a part of a music production and use it in a new song? The judgment of the European Court of Justice C-476/17 Pelham & others provide the following guidance on the matter.
In the case, 2 seconds of a rhythm in the group Kraftwerk’s song Metall auf Metall had been sampled, looped and used by Moses Pelham and Martin Haas in another song, Nur mir and the question of, among other things, infringement of producer rights arose.
In the case, the European Court of Justice states that even a very short audio clip from a recording in principle constitutes a partial reproduction that falls within the producer’s exclusive right. However, the Court finds that the sampling technique is an artistic expression covered by the freedom of art in Article 13 of the EU Charter of Fundamental Rights. The Court further finds that the use does not constitute a reproduction that falls within the producer’s exclusive right when a user with the exercise of freedom of art retrieves even a very short audio clip from a sound recording to use it in a new work in a modified form that is not recognizable to the ear.
The Court thus concludes, in the light of the Charter, that the producer’s exclusive right entails a right for the producer to oppose an outside party using even a very short audio section from the audio recording in order to include the audio section in another audio recording. But only if the audio section is not included in the other audio recording in a modified form that is not recognizable to the ear.
Sampling thus concerns different interests and rights which in the case are weighed against each other. On the one hand, there is the producer’s exclusive right to reproduce their sound recording and the protection of the producer’s investments. On the other hand, there is the exercise of freedom for the art that belongs to the users of protected works and the public interest.
Through the case, the sampling technique is recognized as an artistic expression. But where is the limit for the wording a modified form unrecognisable to the ear and how should such an assessment be made? What the outcome will be in individual cases remains to be seen.
