Phonogram producers can prevent sampling

The dispute began in 1997 when the company Pelham used two-second sound samples from Kraftwerk’s “Metall auf Metall” soundtrack to produce the “Nur mir” song. Kraftwerk, as the producer of the phonogram, on which “Metall auf Metall” was originally recorded, filed suit, claiming that Pelham infringed its related right to reproduction. The case made its way all up to the BGH, which sought clarification from the CJEU in regards to the interpretation of the so-called InfoSoc Directive, particularly its Article 2(c) which addresses the phonogram producers’ reproduction right. In its “Pelham” decision, which has already been reported at IPI, the CJEU clarified that the use of sound samples, albeit very short ones, infringes the phonogram producers’ right of reproduction, except when the samples are used in a modified form and are unrecognisable to the ear.

In light of the “Pelham” decision, the BGH weighed whether the “Metall auf Metall” samples are recognisable to the ear of an average music listener, and whether their use could be allowed under exceptions contained in the German Copyright Act Urheberrechtsgesetz (UrhG) that implement Article 5 of the InfoSoc Directive, particularly the quotation exception (Section 51 UrhG), incidental inclusion (Section 57 UrhG), or parody and pastiche. The BGH ultimately decided that the samples used were recognisable to the average music listener’s ear and that no exceptions were applicable, and therefore Pelham infringed Kraftwerk’s related right of phonogram producers.

The BGH’s decision is hardly unexpected (all the more so considering the CJEU’s last year “Pelham” judgement) and it opens the door for an expansive interpretation of related rights and therefore their protection. In doing so, it warns future music creators that, before resorting to samples, they should be wary not only of others’ copyright but of phonogram producers’ related rights as well.