Licensing of samples v artist freedom

1970s German electronic music band, Kraftwerk, were considered the pioneers of electronic music with their revolutionary distinctive minimalistic sound combining repetitive rhythms and catchy melodies with simplified lyrics often sung through a vocoder.

Kraftwerk have been compared to The Beatles in terms of their influence on pop music. The sounds and beats they invented essentially laid down the foundations for hip-hop, synth-pop, techno and house music. They have been sampled by hundreds of artists, including Madonna, Missy Elliott and LCD Soundsystem.

In 1997 however, music composer-producers Moses Pelham and Martin Haas used a sample from Kraftwerk’s track “Metal on Metal” as the basis for German rapper Sabrina Setlur’s entire song “Nur Mir”, without authorisation or a licence from Kraftwerk. The sample itself is only a two second sequence of rhythms however it repeats throughout the entire song.

Kraftwerk first brought copyright infringement action against Pelham and Haas in 2004. After a long battle over more than a decade, the German Supreme Court ruled in favour of Kraftwerk in 2012. The judges in this instance said uncleared samples were only permissible “if the same effect could not have been produced by the new artist himself”. The lawyers for Kraftwerk asked expert witnesses in that case to smash pieces of metal and demonstrate the sounds on a 1996 Akai sampler to prove that Pelham and Haas could have easily recorded the beat themselves instead of using the unauthorised sample.

Pelham and Haas then appealed to the First Senate of the Federal Constitutional Court (‘Constitutional Court’) in Germany arguing that the Supreme Court decision was a violation of article 5 of the German Constitution which governs freedom of expression.

On 31 May 2016, the Constitutional Court handed down its judgment in favour of Pelham and Haas.

In balancing the rights under article 5 concerning artistic freedom with intellectual property rights, it was held that the copyright holders’ interest to prevent commercial exploitation of their works by third parties without their consent conflicts with the interest of other artists to induce a creative process by an artistic dialogue with existing works without being subject to financial risks or restrictions in terms of content.

It was held that the process of granting rights is extremely difficult in the case of works which assemble many different samples in a collage-like manner (as is often found in hip hop and electronic music) and that reproducing a sample cover can be very laborious.

It was found that there was no real economic disadvantage from the loss of license revenue in this instance and held that on the whole the current deterioration in monetization from musical creativity is not a result of uncleared samples, but rather unauthorised streaming on the internet. It held that the right granted to phonogram producers under German Copyright Law was not intended to protect the right to revenue from licenses for the use of snippets in sound recordings, but rather protection against piracy.

The Constitutional Court in this case carefully examined how copyright works like a double edged sword for artists and can be a severe impediment for artistic freedom. It held that ultimately “one must consider the artistic and temporal distance to the original work, the significance of the borrowed sequence and the impact of the economic damage for the creator of the original work as well as its prominence”.

This case marks a shift away from the interpretation taken in most parts of the world about the requirement for a permission and a licence to use elements from another’s work.

This decision may influence the outcome of the appeal in the US case between the Estate of Marvin Gaye and Robin Thicke and Pharrell Williams where it was previously determined the song “Blurred Lines” infringed Marvin Gaye’s song “Got to Give it up” as there was no licence for appropriate usage of the underlying ‘groove’.

Pharrell Williams pointed out the need to consider and balance artistic freedom with the rights afforded to the copyright owner when he spoke to the Financial Times in March 2015 about his case, stating “if we lose our freedom to be inspired we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation”.

The Constitutional Court is likely to agree with Williams’ statement given it has handed down a decision which will ultimately change the course of music sampling and licensing in the future so that artists are free to create without restriction.