German Court Takes Expansive View of Hip Hop Fair Use: Permitting Unpermissioned Sampling of a Kraftwerk Drum Loop





What matters more, the interests of copyright holders in profiting from their work (even short samples of musical performances) or the interests of hip hop creators - who often use music samples to create new work?

When it came to a drum sample lifted from a 1977 Kraftwerk album, Germany's highest court has come down heavily on the side of 21st century hip hop artists, ruling that "[a]rtistic freedom overrides the interest of the owner of the copyright."

As reported in a June 1, 2016 post to themusic.com, "[a] long-running copyright case involving German electronic outfit Kraftwerk has been shut down by Germany's highest court this week, as the court handed down the decision that sampling was a "style-defining element" of hip hop and should therefore be permitted."

"The German Constitutional Court acknowledged "the essential place that the practice of sampling has in the hip-hop genre" (according to Agence Francais Presse) and found that if copyright owners were to impose royalties on composers, they can either ask any amount they desire or plainly reject usage. This would be restricting the creative process; composers should be able to create without financial risks or restrictions, the court said."

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