The German Federal Constitutional Court (‘BVerfG’) has ruled in favor of a hip-hop artist who used a two-second sample of the song “Metall auf Metall” from the electro-pop band Kraftwerk.
According to the judgment the artistic freedom of the hip-hop artist overbalanced the impact on the phonogram producers’ rights. The BVerfG objected that the Federal Court of Justice (Germany’s highest civil court – ‘BGH’) did not adequately take into account the artistic freedom which is granted by Article 5 par. 3 of the German constitution. In its preceding judgment the BGH did held that the hip-hop artist did infringe the phonogram producers’ rights resulting from sec. 85 German Copyright Act (‘UrhG’) and that this infringement cannot be justified by the free-use defense (sec. 24 UrhG) as the artist could make an own recording of the sample.
The BVerfG now annulled the judgment and emphasized that sampling is an inherent part of hip-hop culture. For the judges the BGH’s interpretation of the Copyright Act would unreasonably limit the artistic freedom as hip-hop artists would have to get a license for each sampling or to record them on their own whereas – according to the judges – sampling does likely only have a minor impact on the exploitation interest of right holder.
Consequently, the BVerfG remitted the case to the BGH and requested that the BGH provides an interpretation of sec. 85 and 24 UrhG that is in line with the constitutional court’s guidelines. Finally, the BVerfG pointed out that in case the BGH believes that the interpretation of the relevant provision is limited by European copyright directives, the BGH would be obliged to refer the case to the European Court of Justice for a preliminary ruling in order to ensure an effective protection of basic rights.