After the “Metall auf Metall” case has already been heard in all instances (LG, OLG, BGH, BVerfG), it is now entering the next round. In a ruling dated June 1, 2017, the BGH (case no. I ZR 115/16) referred questions to the Court of Justice of the European Union regarding an infringement of the rights of the producer of the sound recording through sampling.
Sampling of the song “Metal on metal”
The plaintiffs are members of the music group “Kraftwerk”, which released a recording in 1977 that included the song “Metall auf Metall”. In 1997, the producer of the song “Nur mir” (Moses Pelham) and the singer Sabrina Setlur used a short audio frequency from the Kraftwerk song. Two seconds of the rhythm sequence were copied electronically and played repeatedly at a 5% slower speed (loop).
Kraftwerk saw this as an infringement of its rights as a producer of sound recordings (Section 85 (1) UrhG) and demanded an injunction, information, surrender of the sound recordings for destruction and damages.
Seven courts have had to deal with the case so far
The court of first instance had upheld Kraftwerk’s claim. The appeal was also initially unsuccessful. On appeal, the BGH then overturned the judgment and referred the case back to the OLG for a new hearing. Here too, the OLG dismissed the defendant’s appeal. The subsequent appeal was also dismissed by the BGH.
BGH: Infringement of the rights of producers of sound recordings
The court assumed that the defendants had infringed the plaintiffs’ rights as producers of sound recordings by sampling. Recourse to the right of free use (Section 24 (1) UrhG) was ruled out. The defendants had also been able to record the audio frequency themselves instead of copying it. Also from the artistic right protected by Art. 5 para. 3 sentence 1 of the German Constitution (Grundgesetz – GG) that allows the sound recording to be used without consent.
BVerfG: Artistic freedom enjoys priority
However, the Federal Constitutional Court opposes this in its decision. According to the court, the defendant’s freedom of artistic activity was infringed. The assumption that the use of the audio frequency infringes the rights of the producers of sound recordings is not compatible with Art. 5 para. 3 sentence 1 GG and disproportionate. The BVerfG therefore referred the case back to the BGH on May 31, 2016 (case reference: 1 BvR 1585/13).
Referral procedure at the ECJ – does the use of just two seconds count as a copy?
The BGH has now suspended the decision and requested the ECJ’s assistance. First of all, the BGH raises the question of the extent to which the extraction of even the smallest audio frequency infringes the rights of the phonogram under Art. 2 lit. c Directive 2001/29/EC (Copyright Directive). In addition, the question is whether the extraction and use of the short frequency constitutes a copy of the other phonogram at all.
Is Section 24 UrhG in conformity with European law?
In the event that this question is answered in the affirmative, the question arises as to whether the member states can provide for regulations such as § 24 para. 1 UrhG.
An independent work that has been created through the free use of another person’s work may be published and exploited without the consent of the author of the work used.
The reason for the question is that the Court of Appeal had found that the piece of music “Nur mir” was an independent work within the meaning of Section 24 UrhG.
Use of the frequency covered by the right to quote?
The defendant also invoked its right to quote. Therefore, the ECJ is also faced with the question of the extent to which “metal on metal” is an object of protection within the meaning of Art. 5 para. 3 of the Copyright Directive if it is not recognizable that it is a third-party work and thus a “quotation”.
Furthermore, the question arises as to whether the legislator had any leeway in transposing the directives.
This question is relevant to the decision because, according to the case law of the Federal Constitutional Court, domestic legal provisions that transpose a European Union directive into German law are generally not to be measured against the fundamental rights of the Basic Law, but solely against Union law and thus also the fundamental rights guaranteed by this law, insofar as the directive does not leave the Member States any scope for transposition, but rather sets mandatory requirements.
The ECJ’s decision is expected within the next year. However, after around 20 years of legal disputes, this time should no longer be a challenge for all participants.
Legal situation of sampling also controversial in the USA
However, the dispute over sampling is not only prevalent in Europe. The issue has also been controversial in the USA for a long time and has not yet been finally decided. Until 2016, the case law of the Court of Appeals for the Sixth Circuit applied: “Get a license or do not copy” (judgment of 07.09.2004 – 383 F. 3d 390).
In 2016, however, the Court of Appeal for the Ninth Circuit ruled (judgment of 02.02.2016 – 14-55837) that the use of a 0.23 second long piece was permissible. The average listener could not recognize that the sequence originated from another work due to the enormous brevity of the sample.
However, as there is now a difference between two courts of appeal (circuit split), the problem of sampling will now presumably also be heard by the highest court in the USA; the Supreme Court.