Music sampling is legal, German High Court rules

Sindya Bhanoo — Mon, 24 Nov 2008 13:48:02 -0800

The German High Court has ruled that music sampling is legal in Germany. However, a few important conditions may limit artists and their publishers from using sampled music in commercial releases.

The issue was brought to the court after electronic music pioneers Kraftwerk sued German rap producer Moses Pelham for using a two-second sample of one of its songs. In a German state court, Kraftwerk won the case against Pelham for using the sample. Last week, the High Court overturned that decision, ruling that sampling does not infringe copyrights. The German press release is here.

But the ruling's fine print will create an obstacle for recording artists, according to a blog post by Zohar Efroni at Stanford's Center for Internet and Society.

Efroni writes that the ruling has at least three constraining details:

First, the new work must transform the sampling into "something independent and wholly different."

Second, a sampled melody can not be recognizable in the new selection.

And third, artists cannot use a sampling without permission if "you are capable of playing it yourself." It is not clear how that capability is determined.

In the United States, sampled music has been widely used by rap and hip-hop artists for decades. However, court rulings have cited copyright law in rulings against artists who have sampled other artists' music without permission, which has led to fines and other sanctions. As noted in an opinion of the U.S. Court of Appeals in 2004, "Get a license or do not sample."

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Music sampling is legal, German High Court rules