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"Unrecognisable to the ear"

CJEU rules on Kraftwerk Sampling Case

12 August 2019

The Court of Justice of the European Union (CJEU) held on 29 July 2019 that record producers' rights could be unlawfully "reproduced", even for the sampling of two seconds of a record, "unless that sample is included in the phonogram [record] in a modified form unrecognisable to the ear". The judgment has provided guidance for sampling under EU law but in doing so has also created ambiguity

Case background

In 1977, the electronic music group Kraftwerk released an album featuring the song Metall auf Metall. In 1997, Moses Pelham and Martin Haas composed a hip-hop song Nur Mir, released by Pelham GmbH. In Nur Mir, Pelham used a two-second rhythm sample of Metall auf Metall on a loop repeated throughout the song. Members of Kraftwerk (Hütter and one other group member) brought proceedings against Pelham in Germany based on their IP rights and competition law. The IP claim was based on: their producers' right in relation to the phonogram (record) and their performance rights as well as Hütter's copyright in the musical work.

The Bundesgerichtshof (Federal Court of Justice, Germany) referred a number of questions to the CJEU in respect of record producers' rights and the interpretation of German law.

Arguments considered by the CJEU

The main arguments of interest considered by the CJEU were the following:

  1. Does the sampling of "very short audio snatches" (in this case two seconds) constitute an infringement of the producer's exclusive reproduction right under Article 2(c) of Directive 2001/29 (Copyright Directive)? If so, can that act of sampling be protected as "freedom of the arts", as provided for under Article 13 of the Charter of the Fundamental Rights of the European Union (the Charter)?
  2. Does a record containing a sample constitute a "copy" of the original record for the purposes of the distribution right under Article 9(1)(b) of the Directive 2006/115 (Rental and Lending Rights Directive)?
What constitutes reproduction "in part"?

The Kraftwerk members under Article 2(c) of the Copyright Directive have "an exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part" of their copyright in the recording. The court considered whether the use of the two-second sample by Pelham was sufficient to constitute a reproduction "in part" of the recording under Article 2(c). The CJEU held that "in part" should be given its usual meaning in everyday language and that, considering the high level of protection granted under the Copyright Directive, even a two-second sample could constitute reproduction.

"Freedom of the arts"

The CJEU balanced the above reproduction right with "freedom of the arts", a fundamental right under Article 13 of the Charter. The CJEU held that if: "a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to use it, in a modified form unrecognisable to the ear, in a new work, it must be held that such use does not constitute ‘reproduction’ within the meaning of Article 2(c) of [the Copyright Directive]". In this case, it was held that the sample was not used in a way that was "in a modified form unrecognisable to the ear" and so Pelham's use was not protected by "freedom of the arts".

Is a record containing a sample a "copy"?

The CJEU considered whether records which include samples constituted infringing copies in respect of the "distribution right" under Article 9(b) of the Rental and Lending Rights Directive. As this right was brought in to protect producers from piracy (Recital 2 of the Rental and Lending Rights Directive), the CJEU held that: "a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of [Article 9(b) of the Rental and Lending Rights Directive], of that phonogram, since it does not reproduce all or a substantial part of that phonogram".

"Quotation" defence?

The CJEU also held that the exception for "quotations" provided for in Article 5(3)(d) of the Copyright Directive could not be used in this case as the original work was not identifiable.

Comment

The judgment provides some much-needed clarity on the status of sampling under EU Copyright Law. In particular, the CJEU has clarified, perhaps unsurprisingly, that there is no de minimis threshold applicable under EU law for a sample to be considered a reproduction "in part", as even a two-second sample can qualify for protection. As noted by Attorney General Szpunar in his Opinion on this case of December 2018, this differs from established principles under US case law on sampling (see VMG Salsoul, LLC v. Ciccone).

The CJEU have also provided clarity in holding that records with samples do not constitute copies under Article 9(b) of the Rental and Lending Rights Directive. This is an understandable interpretation in this case, in which the sample is only two seconds. However, the judgment does not consider that this case may not be representative of sampling as a whole, which may in fact be used to copy a "substantial part" of a recording.

Following this case, for sampling to be undertaken legitimately without the express authorisation of the relevant rights holder(s), it must be under "freedom of the arts" – used "in a modified form unrecognisable to the ear". This has potentially created new legal ambiguity as it is far from clear what would constitute a form "unrecognisable to the ear". Arguably this is of little help to music producers, since changing the sample beyond recognition undermines the rationale for using the sample in the first place.

Whilst there is legal ambiguity in this new test, what is clear from the case is that the safest way of sampling is to obtain the rightsholder's permission.

This article was written by Jonathan Coote, Trainee lawyer.