Unrecognizing the recognizable: Addressing the rapper’s dilemma in light of the German case law

*This article is going to be interesting because of three reasons. One, it talks about Sampling in the music industry; two, how European Union Directives harmonize the national legislation on copyright and related rights; and thirdly, what are the legal consequences of sampling in Germany. To make it specific, this article only gives a perspective on EU and German law concerning ‘sampling in the music industry’. 

Music! It fills your soul with diverse emotions: romantic, gloomy, cheerful and what not. It sets you in some mood. Several genres have emerged at different era envisaging different culture and style. One such style that caught public attention was hip hop, which not only emerged as a new genre of music but as a cultural movement depicting the endless gamut of human conditions, and attained popularity particularly around the 1980s and 90s. Today in 2020, it has branched out to be a music style with rhythmic speech as one of the most influential art forms. Along with Hip Hop, a new acoustics technique became extremely popular called ‘Sampling’ which has been a bone of contention as several controversies and litigation have erupted since its inception.

Wait! Do you know what Sampling is? Let me explain. It is a technique of isolating a portion from an existing recorded sound, be it a drum beating pattern, some rhythm or some voice and using it in a loop or just once in other recording. With the digital technological revolution and advances in sound engineering, it has now become easier to extract a sample from an artist’s work and integrate it into another artist’s work. This technique took off in the 80s inextricably linked to blues and rock music, which were created by transposing existing music. DJs and EDM artists too, have also often used turntables to create a loop of existing music or create their music by mixing and weaving together different samples.

You will be surprised to know that our golden era songs, sung by Lata Mangeshkar ji, Mohd Rafi sahab and other legendary artists, were adored by the west coast region rappers. Several big names from the “Hip Hop” industry sampled our Bollywood songs. Most of us believe that it is we who copy from Hollywood, but hey, they copied us too! [Click on the link and check out yourself The Bounce by Jay-Z feat. Kanye West[choli ke peeche kya hai]/Erick Sermon_React [Sample of Kisi ko Khudkhuhsi ka Shauk ho]  

This technique is often used by “Rappers” and is heavily criticized because artists allege that sampling is nothing but reproduction or copy of their original work, if done without the authority of the owner of original record. The copyright over the sound recording vests with the producer and if someone wishes to use any part [even for a second] of the song then legally they need to take a license from the owner, otherwise it would become copyright infringement, unless it comes under fair use. However, it is not as easy as it sounds. Proving copyright infringement in a given case is peculiar in itself because every case is pristine and striking a balance between rights of copyright holders and fair use rights of users is challenging.  

Let me now apprise you with a captivating two decades of copyright dispute which is not yet fully understood let alone a final verdict. Not only plaintiffs but also the defendants must be wondering what the point of this twenty yearlong saga is, that started in 1977 and not yet fully decided in 2020.  The IP sector requires speedy disposal of cases so that the commercial aspect of the rights is not lost but, alas, that is not how the court procedure works.

Like corona pandemic which seems to be uncontrollable although recent, the dispute related to sampling in music has been festering the German courts for the last two decades. Yes, you got it right I am referring to none other than the Pelham case [Pelham GmbH v. Ralf Hutter Case C-476/17]. After the European Union Court of Justice [CJEU] judgement in 2019, an expectation appeared that a concrete judgement from the German Federal Court of Justice [BGH] will follow, but yet again, a day ago [April 30, 2020] the BGH did not fully decide the case and referred back to Higher Regional Court for the never ending next round.

Well, this case is important not only because that the CJEU gave a ruling on whether sampling amounts to copyright infringement or not but it gives a thorough understanding of how EU laws and German National laws related to Copyright and Related Rights are to be read together and what is the role of fundamental rights in interpreting copyright law. 

Facts were pretty simple like any other sampling dispute. In 1977, Hutter and an another member of Kraftwerk published a phonogram incorporating a song ‘Metall auf Metall’ [click here for the song] which was allegedly electronically copied [sampled] approximately for 2 seconds and used by Pelham in a continuous loop in their song ‘Nur mir’.  Hutter and members claimed that Pelham has infringed their copyright by sampling their song and requested for an injunction order, damages and surrender for the phonograms of Pelham.

The case was first brought before the Regional Court of Hamburg, Germany. Hutters got the injunction order [decided in 2004], which was affirmed in the appeal filed by Pelham in the Higher Regional Court Hamburg, Germany [decided in 2006] and then in 2008, it was decided by BGH. After a couple of more rounds, in the year 2016, the German Federal Constitutional Court [BVerfG] decided the matter in favor of Pelham by stating that the lower courts did not consider the fact that the impact of the sample used by Pelham on the market of Kraftwerk would be negligible. The decision of the BVerfG was based on protecting the artistic freedom of the artists and agreed that imposing unnecessary license royalty requirement would stifle creativity. The court positioned itself as the guardian of freedom of artists by permitting remix and sampling without seeking any license from the copyright owner. The court suggested interpretation of the German ‘free use’ as striking a balance between the rights of producers of phonograms and rights of users. The decision was welcomed by the artists and other major section of lawyers.

However, later the case was referred to CJEU for preliminary rulings regarding interpretation of law [EU Directive and German Law] related to the following issues.[the decision of CJEU came in July 2019] First, whether sampling amounts to infringement of the exclusive rights of the producers of phonograms to reproduce & distribute its phonograms as per EU Directive? What is the scope of ‘the right of reproduction’ and its limitations? Second, can a sampled phonogram be considered as a copy of the original phonogram? Third, can a member state lay down exceptions and limitations in their national legislation which restricts the rights of phonogram owner provided under the EU Directive? Fourth, and the most important question as to what extent the fundamental rights argument can be used to ascertain the scope and extent of the rights of the producers of the phonograms and the scope of exceptions and limitations to those rights?

To highlight the specific points, the court stated that the user in the exercise of its artistic freedom if takes out a sample from an existing song and uses it in a way which is unrecognizable to the ear, then it cannot come within the ambit of the meaning of ‘reproduction’. The law does not suggest that intellectual property rights are inviolable or absolute. Creating a new work by using sample comes under the form of artistic expression which is covered by freedom of arts as laid down in the EU Charter. The court, however, did mention very clearly that the copyright law intends to protect the rights of the producers of phonograms so that they can recoup their investment. So a sample, even if it is of few seconds, can amount to reproduction unless it is unrecognizable in the new or derivative work.

With regard to copy the court stated that the new work will not be considered as a copy of the original work because as per the Geneva Convention, which although do not form part of EU Law, nonetheless can be applied to the given case as suggested by the Advocate General, ‘copy’ means that ‘all or substantial part’ of the original work is transposed into a new work.

Another captivating issue was the freedom that member nation possess to include exceptions in their national legislation apart from what is provided in the EU Directive. The court stated categorically stated that the EU Directive makes the provision of exceptions and limitations exhaustively and there is no scope for more exceptions. Inconsistency between different legislation is often a bone of contention in several disputes in the EU. However, there is one common principle that runs through all member states of EU which is the principle of supremacy. The principle of supremacy describes the relationship between the different legislation in terms of precedence. The supremacy rules ensure that EU laws are applied uniformly across all the member nations and in an instance of conflict between the EU law and the National law, the EU law shall prevail. Therefore, if a national law conflicts with the EU Law, the member states authorities must apply EU Law without amending or repealing the national law, it’s just that for the time being the national law remains suspended.  And to allow, the member states to add more exceptions, as opposed to the express intention of EU Legislature would endanger the effectiveness of the harmonization of the copyright and related rights affected by the EU Directive as well as the principles or objectives laid down by the court in previous judgements. Such differences across the nations will affect the functioning of the internal markets of the copyright and the consistency cannot be achieved if member states can add more exceptions as per their whims and fancies.

The CJEU rulings formed the basis of the BGH judgement which came a day ago [April 30, 2020] [Click here to head the decision]. The BGH stated that the acts of defendant amounts to reproduction and hence violates the rights of Plaintiffs, but only for the period after  December 22, 2002, since the EU Directive 2001/29/EC on reproduction rights is applicable from this date, however, the sampling by Pelham was done in the year 1997. The Court, however, did not make a final assessment because the Higher Regional Court lacked findings as to whether the defendants have taken any acts of reproduction or distribution since December 22, 2002 or whether such actions were to be expected seriously and concretely. Further, the court made it clear that Pelham cannot rely on the fair use exception given under the German Copyright Law, since according to the CJEU ruling the EU Directive does not permit EU member states to include more exceptions than what is provided in the EU Directive. Also, the Defendant cannot invoke other exceptions including quotation, caricature or parody. Hence the appeal was overturned by the BGH and matter was referred back to Regional Court for re-examination.

To sum it up, it is undisputed that the objective of copyright law is to be protective of the rights of the authors or owners, but these rights are not absolute, their rights are subject to certain restrictions and limitations which are enumerated in the Copyright Law itself. To balance the rights of phonogram owner and users in the light of fundamental rights, it is appropriate to conclude that where usage of the sample is unrecognizable to the ear, howsoever long it may be, it will be permitted to protect the freedom of expression of artists. An interpretation that gives absolute rights to phonogram producers would fail to strike a balance between rights of different right holders and users, hence there should be some living space made available to the artists to sample and create new work. However, it should be unrecognizable in the new work, no matter whether the sample forms a substantial part of the original song, but the point is how the sample integrates with the new work in an unrecognizable manner.

Having stated that, what amounts to recognizable or unrecognizable form of sample is still a question of fact, and depends upon how observant a listener is. Subjectivity brings a lot of discretion which needs clear principles and guidelines. May be another judgement will give us more clarity with regard to ‘what is an unrecognizable form of sample in a derivative work?’ Till then, the findings of CJEU comes as a relief to some extent if one is using the sample without being “noticed”. But then what’s the point of sampling? Isn’t it? I think we need more elaboration on the concept of ‘Derivative works’ or works created using sampling. As I said every case is pristine, given the nature of art form, and it becomes ever challenging to apply the same rules in new areas of creativity.

Let us wait for the decision of the next round which lie before Higher Regional Court.

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About Charu Srivastava 7 Articles
Good day everyone!!! I am a faculty at School of Law, UPES [Dehradun] possess close to 6 years of academic experience, also a PH.D. Scholar at GNLU, Gandhinagar. I hold a Master degree in Business Laws from National Law School of India University, Bangalore. Passionate about Intellectual Property Rights particularly Law of Copyrights, Trademark, Geographical Indication and Traditional Knowledge. Aspires to contribute thoughtful posts on IP ranging from its creation to enforcement to cater to the vast category of readers involving artists, lawyers, academia or any layperson having no knowledge of IP. On a lighter note, Alas, I am not Adventurous or a traveller but have an interest in singing, playing guitar and cooking little bit.

39 Comments

  1. Fundamental rights being put forth to make an argument for sampling being no copyright infringement is a solid argument, sadly not really considered by the court. Copyright issues are so much engrossing. Wonderful article.

  2. THE IP PRESS is publishing such great articles. Even though I belong to the engineering background, it’s amazing to read it!

  3. Incredibly Informative!
    This Article made me wonder if we could have objective test for unrecognizable form of sampling in derivative works??Is it even a possibility?

  4. It is interesting how the EU court tried to create a balance between the rights of Copyright owners and the ‘samplers’. Although the uncertainity around what is ‘recognisable’ would still linger around and would be difficult to define within set parameters.
    Nonetheless, looking forward to more such reads.

  5. Though Copyright law protects the work of the original owner whether in case of music or any artistic work but sampling in musical work whether amounting a copyright infringement or not depends upon case to case as sampling in musical work can be a fair use if taken with the permission of original owner of the music or the person who did it’s sound recording earlier but upto a certain limit like for seconds so that it is unrecognisable otherwise it would amount to infringement but we as users cannot create a bar between the recognisable and unrecognisable songs, therefore the Copyright laws in such matters should be made stringent so as to protect the sampling or reproduction of the original songs by the rappers so as to gain mere publicity as they lack the talent to produce any new thing of their own

  6. It is really an exceptional task to summarize such a vast topic so much precisely and meaningfully. And level of creativity shown is ineffable.

  7. It is really an exceptional task to summarize such a vast topic so much precisely and meaningfully. And level of creativity shown is ineffable.

  8. Nice articulation on the copyright pertaining to sampling of copyright in music industry. The recent judgement on the subject by German courts will act as a guiding tool for countries to develop the copyright law accordingly

  9. Sampling, is indeed a grey area. Wonder how a fine line can be drawn between violation of rights and fair use. Really, such a complicated issue simplified beautifully.

  10. Amazingly expounded the problem persisting in the Copyright realm of Music Industry. And the reference to the foreign jurisdiction on the subject matter exalts the level of research done for the same.

  11. There is a plethora of issues persisting in the Music Industry and its copyright regime. You have portrayed a picturesque view of the problem on sampling by referring to the foreign jurisdiction on the matter. We can anticipate that in the future, the ratio will be articulated so as to resolute the disputes and protect the IP Rights from tarnishing their economic aspect.

  12. There is a plethora of issues persisting in the Music Industry and its copyright regime. You have portrayed a picturesque view of the problem on sampling by referring to the foreign jurisdiction on the matter. We can anticipate that in the future, the ratio will be articulated so as to resolute the disputes and protect the IP Rights from tarnishing their economic aspect.

  13. Wow!!!this article is incredibly informative as well as insightful. The fact that such niche areas are being discussed on this blog i am sure it will be really helpful for the academics and students alike.

  14. Well! The Work by the author is Great nd is Precise 👌 But The Judgement by EU in real sense lacks ground when it states about “unrecognizable” term because then Artists would fear their own creation. No one Creates a New work taking into consideration all phonograms around.

  15. A very well researched article Charu ,my point of view is that I am glad the right of the original Artists can be protected outside idea but do you feel in India all this is possible with the latest Masakalli fiasco although I am not a follower of legal issues on Copyright/ IPR would love to read more on this.I think starting this Blog is a great idea.

    • A unique debate which has been well elucidated. Looking forward to many more academic deliberations. Good going Charu!

  16. Good Piece of work. Very informative and well articulated. Great initiative! Looking forward for more such insightful articles to expand my knowledge of IPR.

  17. Well worth a read. Sets the tone for the larger debate. Hope to see more of such rich information here.

  18. Descriptive and Insightful version of learning about the concept of sampling… After reading this article, one thought is continuously running in my mind… i.e. how much time an Indian Courts would take, if European Commission and German court had dragged the matter for twenty years… There is at most requirement to establish Ombudsman for Copyright and Media Industry in which the specialised penalists should be experts like you…!!!

  19. Great article.

    I think unless an exception is created for sampling, an artist should be authorized by the ownwer or creator’s work they are using, because at some point the artist using sampling will communicate it to the public and could profit from it, so part of the money he gets should also go to owner or creator whose sampling they are using. Otherwise, it’s infringement.

    Regarding how to identify if a sampling could be considered infringement, it will depend, as you said, if it’s recognizable, which could happen if the portion used is unique and could be linked to another artist’s work.

  20. Quite an informative article.. one of the most informative articles on sampling that I have come across..!!

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