In his opinion of 12 December 2018, Advocate General Szpunar advised the Court of Justice of the European Union (‘CJEU’) to rule that taking and using a sample from a Kraftwerk record infringed Kraftwerk’s exclusive reproduction right held as the producers of that record. If the CJEU follows this opinion, then this would mean that any person wanting to use a sample must first obtain a licence.
Kraftwerk is a German music group that is widely recognised as being one of the pioneers of electronic music. Tracks such as “Autobahn” and “Tour de France” are considered classics in this music genre. A slightly lesser known track is “Metall auf Metall”, which appeared on the album “Trans-Europe Express” that was released in 1977.
Moses Pelham is a German hip-hop artist and producer. In 1997, he released a record entitled “Nür Mir”, which contains a two-second sample taken from Kraftwerk’s “Metall auf Metall”.
Kraftwerk was not happy about this use because Pelham had not ‘cleared’ the sample with them. In other words, he had not requested their authorisation to use the sample.
A dispute arose and, ultimately, two Kraftwerk members, Mr. Ralf Hütter and Mr. Florian Schneider-Esleben, decided to start legal proceedings in Germany as they believed that Pelham had infringed their exclusive rights as the producers of “Metall auf Metall”.
After a yearlong legal battle, the case ended up before the German Supreme Court (Bundesgerichtshof), which referred it to the CJEU for a preliminary ruling on the legal status of sampling.
Sampling – what’s in a name?
Sampling can be described as a technique consisting of taking, by using electronic equipment (i.e. a sampler), an extract from a record to use it as an element in a new composition in another record. When reused, that sample is often mixed, modified and repeated in a loop in such a way as to be more or less recognisable in the new work. The technique is widely-used in hip-hop and electronic music. Some commentators even take the view that these genres would not have come into being without sampling.
There is still quite a bit of legal uncertainty surrounding the use of samples. This uncertainty is caused, amongst other things, by the absence of a clear legal framework (for example, the existence of a specific exception to the author’s and/or neighbouring rights holders’ exclusive rights) and by a relative scarcity of case law on the subject. Add in the question of whether, and under what circumstances, sampling could be justified by the right to (artistic) freedom of expression of the people who sample, and there are all the ingredients for the matter to be submitted to the CJEU.
“Thou shall not steal”
Sampling has the potential to interfere with the rights of all the different rights holders in a record, i.e. the composer’s copyrights as well as the neighbouring rights held by the performer(s) and the producer. This case relates to the rights of the record producer (in legal terms: the “phonogram producer”).
Like the other right holders, record producers have an exclusive right to “authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” of their records (Article 2(c) of the InfoSoc Directive 2001/29/EC).
The main question in this case is whether the use of a short sample without the producer’s authorisation amounts to an infringement of the producer’s reproduction right.
According to the Advocate General, the answer to that question is a clear and simple ‘yes’. In his opinion, the Advocate General has stated that sampling (generally) involves a direct and permanent reproduction, by digital means and in digital form, of a portion of a record and thus clearly falls under the producer’s reproduction right.
The fact that the sample is only two seconds long is irrelevant in the Advocate General’s view. The Advocate General has based this conclusion on the ratio legis of the producer’s rights. In this respect, he - correctly – has noted that the producer’s rights are not subject to the originality requirement of copyright law. Unlike a work eligible for copyright protection, a record is protected, not by virtue of its creativeness, but rather on account of the financial and organisational investment made by the producer.
Consequently, neither the length of the sample nor its content are relevant. All samples require the producer’s authorisation, even very short samples and samples containing trivial sounds or sounds that are otherwise not protectable under copyright law.
Another important point in the Advocate General’s opinion is his finding that, under the current legal framework, the obligation to request the producer’s authorisation to use a sample from the producer’s record is not contrary to the fundamental right of freedom of the arts.
The Advocate General’s conclusions are a reminder of the earlier high-profile sampling cases in the US. In the first major case involving sampling, i.e. the 1991 Grand Upright Music Ltd. v. Warner Bros. Records case, the United States District Court for the Southern District of New York rejected the practice of sampling by, amongst other things, referring to the Biblical verse “Thou Shall not Steal”. The case related to a sample of Gilbert O'Sullivan’s "Alone Again (Naturally)” used by rapper Biz Markie. In Bridgeport Music Inc. v. Dimension Films, a case concerning N.W.A.’s song “100 Miles and Runnin’” in which a two-second guitar chord from Funkadelic's “Get Off Your Ass and Jam” was used, the United States Court of Appeals for the Sixth Circuit ruled: “Get a license or do not sample” and added “We do not see this as stifling creativity in any significant way."
In the only Belgian case on sampling (of which we have knowledge), sampling without permission was also found to be an infringement. The case related to the use by the German dance music group Scooter of a sample from L.A. Style’s 1991 techno classic “James Brown is dead” in their song “Call me Mañana”.
We anxiously await the CJEU’s judgment. However, as in most cases, the chances are relatively high that the CJEU will follow the Advocate General’s opinion. In that case, any person wanting to use a sample in another (commercial) record will in principle be obliged to obtain a licence, at least from the producer of the sampled record. This could have a major impact, not only in hip-hop and electronic music, where sampling is very common, but also in other mainstream, underground and less conventional music genres in which the technique is used as well. Finally, it should be noted that this obligation cannot necessarily be extended to the song’s composer. After all, the latter’s authorisation is in principle only required for samples that are ‘original’, i.e. samples that are in themselves protected by copyright.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, O.J. L 167, 22/06/2001 P. 0010 – 0019.
 Grand Upright Music Ltd. v. Warner Bros. Records, S.D.N.Y 1991.
 Bridgeport Music Inc. v. Dimension Films, 6th Circ. 2005.
 President Court of First Instance Brussels, 5 August 2004, AM 2005, 244.