HomeInsightsCourt of Justice of the European Union finds that use of a two-second electronic sample in a modified form that is unrecognisable to the ear does not constitute copyright infringement

The claimants, Ralf Hütter and Florian Schneider-Esleben, were members of the music group Kraftwerk. In 1977, Kraftwerk released a record, produced by Mr Hütter and Mr Schneider-Esleben, featuring the song Metall auf Metall. Mr Hütter and Mr Schneider-Esleben were also the performers of the work in question and Mr Hütter was also the author (composer).

The defendant, Pelham GmbH, produced a record featuring the song Nur mir, performed by the singer Sabrina Setlur. Moses Pelham and Martin Haas, also defendants, were the authors of that work.

Mr Hütter and Mr Schneider-Esleben claimed that the defendants had copied, through electronic sampling, approximately two seconds of a rhythm sequence from the song Metall auf Metall and incorporated it, as a continuous loop, into the song Nur mir.

The case eventually reached the German Federal Court of Justice, which referred various questions to the CJEU. Essentially, it asked whether the non-authorised inclusion of a sound sample in a phonogram by means of sampling taken from another phonogram was an infringement of the rights of the producer of the phonogram from which the sample in question was taken under the Copyright Directive (2001/29/EC). It also sought clarification on the copyright exceptions and limitations under the Directive. In particular, it asked whether sampling was capable of falling with the “quotation exception” under Article 5(3)(d).

The CJEU found that:

  • in principle, the reproduction of a sound sample, even if very short, from a phonogram must be regarded as a “reproduction in part” of that phonogram such that it falls within the exclusive right granted to the phonogram producer;
  • however, where a user takes such a sound sample and uses it in a modified form, unrecognisable to the ear, in another phonogram, that cannot be regarded as a “reproduction”. To find otherwise would run counter to the requirement to strike a fair balance between the interests of the rights holders and the protection of the fundamental rights of users of protected subject matter, which are covered by freedom of the arts, enshrined in the Charter of Fundamental Rights, as well as the public interest;
  • an article which reproduces all or a substantial part of the sounds in a phonogram amounts to a copy of that phonogram, in relation to which the phonogram producer enjoys an exclusive right of distribution. However, an article, which, as in this case, merely embodies sound samples in a modified form transferred from that phonogram for the purposes of creating a new and distinct work from that phonogram does not amount to a copy;
  • the copyright exceptions and limitations in the Directive already take into account the interests of the producers and users of protected subject matter and the public interest. Further, the list of exceptions and limitations is exhaustive. Consequently, any national law that provides for an extra exception or limitation does not comply with EU law;
  • as for the quotation exception, the use of a sound sample that allows the work from which that sample was taken to be identified may, subject to certain conditions, amount to a quotation, provided that such use is aimed at entering into a “dialogue” with the work in question. However, if it is not possible to identify the work from the sample, its use does not fall within the quotation exception;
  • Member States can, in applying EU law, apply national standards for the protection of fundamental rights, provided that the application of such fundamental rights does not compromise the level of protection set out in the Charter. However, the substantive law relating to a phonogram producer’s exclusive right of reproduction has been the subject of full harmonisation so that such national standards are, in that regard, inapplicable.

(Case C-476/17 Pelham GmbH v Ralf Hütter EU:C:2019:624 (29 July 2019) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).