Use samples as background loops for new pieces of music

Gold rapper Bushido achieves a partial victory before the BGH - the court declares sound carrier sampling permissible.

Accusation of plagiarism against rapper Bushido leads to BGH decision on the admissibility of music sampling

Rapper Bushido has been accused of plagiarism by the French gothic band Dark Sanctuary. The accusation of plagiarism relates primarily to the rapper’s album “Von der Skyline zum Bordstein zurück”. Bushido is accused of having used foreign sound sequences of an average of 10 seconds in 13 rap pieces.

The rapper had taken so-called samples from the band’s original recordings, i.e. parts of the original music were copied electronically without using the lyrics. The musician used these as background loops (constantly repeating music loop) using drum beats and vocals.

The band members then took legal action against the rapper for alleged copyright infringement. They sued for injunctive relief and damages due to the infringement of intangible property rights. One of the band members invoked his rights as a composer and the other members invoked their rights as lyricists.

The copyright protectability of samples

The adoption and use of other people’s samples is very common in the rap scene, although this always requires the permission of the original author. Legally, however, this approach is highly questionable.

Under copyright law, individual sections of music may be copied. However, according to § 24 para. II UrhG, this is illegal if an entire melody is recognizably taken from the work and used as the basis for a new work.

Original connection between text and music not protected by copyright

After the Higher Regional Court of Hamburg confirmed the unauthorized use of third-party music and issued a ban on the distribution of the rapper’s music pieces in dispute, this decision has now been overturned by the Federal Court of Justice (judgment of 16 April 2015 – I ZR 225/12 – Goldrapper).

In the opinion of the BGH, the rights of the lyricist were not infringed. There was no copyright infringement with regard to the text passages, as Bushido had only used sections of the music. At the same time, the court found that the original connection between the music and the lyrics was not protected by copyright.

Takeover not a copyright infringement without further ado

Furthermore, the judgment of the lower court was revised to the effect that the use of samples does not automatically constitute copyright infringement. Rather, it should be examined by an expert whether the requirements for copyright protection are met. According to the court, there must be certain objective characteristics that indicate a creative originality of the originally composed music sequences.

Partial rejection

In order to decide whether a copyright-relevant infringement of the composers’ rights and thus the requirements for the existence of copyright protection are met, the action was partially referred back to the Higher Regional Court of Hamburg. By involving an expert appointed by the court, it is now to be examined whether the specific samples were created by more than just a routine procedure.

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