German Federal Courts: Where IP Optimism Goes to Die

Remember what I said about Germany's highest Court recognizing an untrammeled right to sample a small portion of an existing musical recording

Because that's how hip-hop works.

Remember how excited I was when Germany's Constitutional Court - back in 2016 - wrote so eloquently (and logically) about how a 2 second long drum sequence from Kraftwerk’s 1977 "Metall auf Metall" (Metal on Metal) could be looped under Sabrina Setlur’s 1997 "Nur Mir" (Only Me) without requiring endless years of litigation - or paying hundreds of thousands of Euro's to lawyers and record companies?

Was I wrong to hope, back then, that the evolving American legal decisions - written by enlightened Judges, who favor a transformative fair use for economically inconsequential excerpts - had found a sympathetic ear in Germany's highest Court?

Well. Yes. And no.

While the highest Court in Germany clearly got how sampling could work in the 21st century, they also referred the matter back down to Germany’s Federal Court (mired in the 19th century?) to be reassessed.

And it's in those dreary German Federal Courts where optimism (for example, about copyright law evolving to suit the times) apparently goes to die. 

It isn't over yet. 

But, the latest news is grim.

In the now never-ending case involving that 41-year-old 2-second rhythm sample from Kraftwerk, Advocate General Szpunar writing for the German Federal Court ruled on December 12th, 2018 that:

"The aim of sampling is not to enter into dialogue with, be used for comparative purposes, or pay tribute to the works used. Sampling is the act of taking extracts from other phonograms, which are used as raw materials, to be included in new works to form integral and unrecognisable parts. Moreover, those extracts are often modified and mixed in such a way that all original integrity is lost. It is not therefore a form of interaction but rather a form of appropriation... I do not believe that it is customary in hip hop or rap culture to indicate the sources of the samples that make up the works belonging to those genres of music. In any event, it is not apparent from the order for reference that the appellants tried to indicate the source of the extract used in the song Nur mir or the names of the respondents... I therefore propose that [an exception similar to US notions of fair use provided for in Germany's Article 5(3)(d) of Directive 2001/29]... does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram."

In short?

You still can't sample in Germany without getting permission.

Even after the highest Court in Germany wrote in 2016 that Sabrina Setlur’s sampling of Kraftwerk's then 20 year old song had a “negligible” impact on Kraftwerk and therefore “artistic freedom overrides the interest of the owner of the copyright.” 

Address your outraged complaints to Advocate General Szpunar in the German Federal Court. (That's his picture above. And no. I didn't get permission to use the picture from CommRisk. Sue me.)

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