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 112/06I 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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