Re-Mixing Protected By Freedom Of Arts Fundamental Right, German Court Rules

The German Constitutional Court today ruled in favour of the “freedom to sample” – or freedom to remix – in a case between the singer/songwriter Sabrina Setlur and the band Kraftwerk.

The latter had filed complaints against the sampling of two seconds of rhythm from its 1977 song “Metall auf Metall” in Setlur’s 1997 “Nur mir”. The Federal High Court and several lower courts ruled in favour of Kraftwerk, pointing to German copyright legislation underlining the difference between re-using snippets from the original recording medium to re-performing them.

A press release on the decision in English is available here.

The Constitutional Court invalidated the earlier judgment of the Federal High Court ruling, finding that it had violated Setlur’s and some of the co-defendant’s freedom of arts right. The aim of legal protection for the original rights owners was not, the Court wrote in the 40-page decision, “to secure income from licensing of the re-use of samples in other musical works, but instead the protection against being harmed economically by piracy.”

A ban of sampling – which in practice means that the musical snippets are taken from the original and integrated in the new work – could over time strangle artistic development, the judges wrote. They also underlined they did not see that Kraftwerk had been harmed economically.

Sending the decision back to the Federal High Court of Justice the Constitutional Court wrote that the legislator was free to regulate for licences securing appropriate remuneration for rights owners if he wanted to do so. At the same, the Federal High Court was requested to check how the German protection of the constitutional freedom of the arts protection might be interfered with by the EU copyright directive.