On the 31 May the German Federal Constitutional Court issued a decision in the case “Metall auf Metall”. This is the latest decision in a German Court battle that has been on-going for 17 years now. It concerns the question of whether the sampling of very short sounds constitutes copyright infringement or not. While it is still not finally decided whether the sounds of others can be used in this way, it seems as if the strict prohibition set out by the Federal Court of Justice cannot be upheld.

Circumstances of the case

In 1977 the band “Kraftwerk” released the song “Metall auf Metall” as part of the album “Trans Europe Express“. The plaintiffs consider themselves owners of the neighbouring right granted to phonogram producers in Germany. In 1997 the album “Die neue S-Klasse” was released. One rap-song on this album, produced by Moses Pelham is “Nur mir” which uses a short sequence of two seconds from the song “Metall auf Metall” in the background. The sequence has been slowed down about 5 per-cent and is repeated permanently (called a Loop). The producers had no license to use this loop. The plaintiff considered this use an infringement of their rights as phonogram producers.

The proceedings

The plaintiffs filed the suit in 1999 at the Regional Court in Hamburg. This marked the beginning of these drawn-out proceedings. After the Regional Court in Hamburg returned a verdict, the higher regional court in Hamburg as well as the Federal Court of Justice had each to decide the case twice. The first time the case reached the Federal Court of Justice it referred the case back to the higher regional court. The new, second decision of the higher regional court was appealed again to the Federal Court of Justice. All decisions had similar results: Copying the short sequence without permission infringes the right of the plaintiff. The plaintiffs have won every instance up until now.

In the last decision of the Federal Court of Justice, it decided that using a sequence of sounds can only be free use that does not require a licence in cases where the sampler cannot reproduce the sequence himself. Therefore if it is such a difficult sequence that no one else can reproduce it, taking the loop from the original work would not amount to copyright infringement. If it is a sound sequence that a sampler could reproduce easily, a license to use the original recording must be secured.

However, the Federal Constitutional Court’s recent decision comes to a different conclusion. Twelve people filed a constitutional complaint against this second decision of the Federal Court of Justice. Not all of the twelve constitutional complaints were successful but the one filed by Moses Pelham was.

Constitutional complaint

The Federal Constitutional Court set aside all earlier judgments. According to them, sampling is art and the earlier decisions did not take the fundamental right of artistic freedom into account sufficiently. Therefore the Federal Constitutional Court referred the case back again to the Federal Court of Justice for a new decision.

The Federal Constitutional Court can only decide about violations of the German Constitution. In the case at hand it considered the implication of the artistic freedom for the use of sampling on two different levels.

  1. Is the German Copyright act compatible with the constitution?
  2. Did the Federal Court of Justice consider the artistic freedom in the right way when they interpreted the copyright act?

The Federal Constitutional Court decided that in this case, two basic rights were in conflict with each other. This conflict touches the artistic freedom (Art. 5(3) German Constitution) of the sampler as well as the property right (Art. 14(1) German Constitution) of the phonogram producer.

According to the Federal Constitutional Court, the German Copyright Act is flexible enough to take both basic rights properly into account. It is possible to apply the law in a way that is compatible with the constitution. Therefore the copyright act itself is compatible with the constitution.

However the Federal Constitutional Court found the Federal Court of Justice’s interpretation of the copyright act not to be compatible with the constitution. According to the Federal Constitutional Court, the requirements set up by the Federal Court of Justice (for works to be allowed due to the basic right of artistic freedom outweighing the property right) were too strict.

The requirement that only sequences of sound that cannot be easily reproduced is not compatible with the basic right of artistic freedom according to the Federal Constitutional Court. The Federal Constitutional Court argued that the phonogram producer could refuse every offer to buy a license or demand very high prices. With this power the phonogram producer could de facto decide whether art is made or not. This cannot even be justified by the property right of the phonogram producer. The phonogram producer will not suffer a (commercial) disadvantage if a very small part of one of his songs is sampled. Moreover the purpose of giving the phonogram producer its own right was to give him a means to fight phonogram piracy, which is not affected by sampling. The Federal Constitutional Court also mentioned that it will not be easy and often quite cost intensive to reproduce the copied part of the song. As all this restricts the artist – who is then no longer free when he creates art – the Federal Constitutional Court decided that the requirement set out by the Federal Court of Justice was too strict.

As a result, the Federal Constitutional Court set aside the judgment of the Federal Court of Justice and referred it back.

For the further proceedings the Federal Constitutional Court emphasized that the Federal Court of Justice is in principle free to deicide in which way it takes the constitution into account. The Constitutional Court also mentioned that the Federal Court might have to think about referring the underlying questions of this case to the European Court of Justice as it is possible that they are affected by EU Directives.

Conclusion

The first decision in the case “Metall auf Metall” is more than ten years old and the end of the proceeding is not in sight. If the Federal Court of Justice decides to refer the underlying questions to the European Court of Justice, it will take another couple of years before a final decision is delivered. It does not seem as though Moses Pelham will be deterred by the possibility of further extended proceedings. He appears willing to continue to fight for his artistic freedom. In the end no question will be more thoroughly decided in German Copyright law than the question whether sound sampling interferes with right of the phonogram producer. At the moment it looks as if the chances for sound sampling to be allowed in the end are a little higher than that it will be prohibited.