Section 24 (1) of the German Copyright Act permits the publication and exploitation of an independent work that is created in free use of a work of another author (as part of a free use - to be distinguished from a mere derivative use), without the consent of the author of the underlying work (the original author). The use of the original author’s work is therefore allowed without the consent of the original author in such situations. This can be the case, if such work was not copied identically or in a re-arranged form but only gives the impulse for the creation of the other work, and leads to the creation of an independent work.
With respect to the sampling of sound carriers (electronic copying of a short sequence of a sound or music recording) the German Federal Supreme Court decided on December 13, 2012 (file number I ZR 182/11) that the free use of sounds recorded onto somebody else’s sound carrier for their own purposes is prohibited if an average music producer is able to easily produce an equivalent sound recording.
The band Kraftwerk had filed a lawsuit against the singer Sabrina Setlur and the composers of the title Nur Mir (Only For Me), recorded by Sabrina Setlur. Kraftwerk had released an album in 1977 containing the title Metall auf Metall (Metal on Metal). From this title defendants electronically copied a two-second-long rhythmic sequence (although they could have recorded this sequence easily themselves) and included it in their title Nur Mir in a repeated form. The plaintiffs (Kraftwerk) regarded this as an infringement of their rights as producers of the recording, and pursuant to section 85 (1) of the German Copyright Act by the plaintiffs.
The German Federal Supreme Court agreed with the plaintiffs holding that their rights as producers of the recording had been infringed. The Court noted that, pursuant to section 24 (1), the use of somebody else’s sound carrier without the consent of the author is permitted only if the new work keeps such a distance to the sounds on the pre-existing sound carrier, that the new work must be regarded as independent. The Court further stated that a free use cannot be found if it is possible for the producer (in this instance) to record the sequences of somebody else’s sound carrier itself. In such a case there is no justification for an interference with the entrepreneurial performance of the producer of a recording. There is also no justification to take a different view based on the freedom of art protected in article 5 (3) of the German Constitution.
Therefore, the decisive question with respect to infringement and the sampling of sound carriers - pursuant to section 24 (1) - is whether the respective sequence can be recorded by an average music producer, him- or herself. However, the German Federal Supreme Court left open when this should be the case. This decision is a clear restriction of section 24 (1) German Copyright Act, at least for professionally produced music, especially because professional music producers are nowadays typically able to record the respective sequences easily themselves. A different result could only apply to non-commercially produced samplings. This restrictive interpretation of section 24 (1) GCA, as it relates to the admissibility of samplings of sound carriers, was confirmed by the Court in its recent 13 December 2012 decision (file number I ZR 182/11).