On 29th July 2019, the Court of Justice of the European Union issued a judgment (click here for full judgement) in response to a referral from the German national courts on the sampling of part of a 1977 Kraftwerk song, “Metall auf Metall”.
In a long running claim by two members of Kraftwerk against German music composers Moses Pelham and Martin Haas, it was claimed that sampling of a two second sequence from the Kraftwerk song was an infringement of copyright.
The decision of the CJEU is notable in that sampling has always been something of a grey area and it has long proved difficult to identify where the line lies when using samples which are so similar and easily identifiable to raise copyright issues and when they are sufficiently distinct to avoid infringement.
The judgment issued by the court confirmed the rights of the copyright owner to prevent a third party from using a sound sample, even if very short, for the purpose of sampling on that third party’s track. The only circumstances in which sampling without consent would not infringe copyright is where the sample is “in a modified form unrecognisable to the ear”.
The court also goes on to consider the provisions for copying and quotation in EU legislation and notably that the quotation exemption does not apply where the work sampled cannot be identified.
The judgment of the court provides further useful guidance when using the work of another party but serves to underline the need to proceed with caution when drawing inspiration from other works.
Lynn Richmond is a Partner in BTO’s Music and Creative Industries Team.