Germany Realizes That Music Samples Can Be Fair Use

from the it's-a-start dept

One of the absolute worst copyright decisions of the last few decades was the ruling in one of many Bridgeport lawsuits, which established the idea that there simply is no fair use when it came to music samples. The ruling found that if you did any sampling, even if it's unrecognizable and has no impact on the original song, you still have to pay a royalty. This seems wrong on so many levels, it's still amazing that a judge ruled that way, ignoring the traditional four factors test for fair use.

Over in Germany, a district court seemed to take the same path in a case brought by German legends Kraftwerk against a hip hop artist that used a 2-second sample. However, the good news is that an appeals court has put a bit of sanity back into the process, noting that a two second sample used in a way where it's barely recognizable should obviously be fair use.

The ruling is hardly a huge win, as it still requires the samples to not use the melody and be in a completely new piece of music (thanks to Adam for sending this in). Overall, it's a better ruling than the original ruling, though still seems to limit fair use way beyond what is reasonable when it comes to music sampling.
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Filed Under: copyright, germany, kraftwerk, music, samples


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  1. identicon
    Saskia, 24 Nov 2008 @ 5:38pm

    Fair use?

    The German court did not ruled that the sample was fair use. The court ruled that Kraftwerk's copyright was not violated because the final work was substantially different.

    "Judges in Berlin said the two second extract did not infringe copyright, as his song was substantially different." (BBC)

    I checked the German sources as well and there was no mention of fair use (I am not even sure if this concept exists in the German legal system).

    "Zwar ist laut BGH auch das Sampling "kleinster Tonfetzen" grundsätzlich erlaubnispflichtig, allerdings kann auf die Erlaubnis verzichtet werden, wenn die Tonfolgen in ein neues und klar unterscheidbares Werk eingebaut werden."

    Which translates into: the German higher court ruled that generally permission needs to be obtained even when using "smallest sound bites". However one can abstain from asking for permission if the tone sequence is built into a new and clearly different works.

    In this respect the court looked mainly at similarity/originality of the two works. It looks like this will be the main test when sampling is considered as copyright issue... My best guess is that the German courts wanted to avoid a flood of such lawsuits, there must be literally thousands of songs that use a couple of Kraftwerk seconds.

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