Germany Realizes That Music Samples Can Be Fair Use

from the it's-a-start dept

Mon, Nov 24th 2008 2:16pm — Mike Masnick

One of the absolute worst copyright decisions of the last few decades was the ruling in one of many Bridgeport lawsuits, which established the idea that there simply is no fair use when it came to music samples. The ruling found that if you did any sampling, even if it's unrecognizable and has no impact on the original song, you still have to pay a royalty. This seems wrong on so many levels, it's still amazing that a judge ruled that way, ignoring the traditional four factors test for fair use.

Over in Germany, a district court seemed to take the same path in a case brought by German legends Kraftwerk against a hip hop artist that used a 2-second sample. However, the good news is that an appeals court has put a bit of sanity back into the process, noting that a two second sample used in a way where it's barely recognizable should obviously be fair use.

The ruling is hardly a huge win, as it still requires the samples to not use the melody and be in a completely new piece of music (thanks to Adam for sending this in). Overall, it's a better ruling than the original ruling, though still seems to limit fair use way beyond what is reasonable when it comes to music sampling.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, germany, kraftwerk, music, samples

7 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Junior Samples, 24 Nov 2008 @ 2:25pm

I started the whole sampling industry back in the day. It was called a tape recorder.
[ link to this | view in thread ]
ahhh, 24 Nov 2008 @ 3:12pm

there are only so many different combinations of musical notes.... sooner or later we are going to run out of new music... and any combo of musical notes will be Breaking the law.
[ link to this | view in thread ]
Slartibartfast., 24 Nov 2008 @ 4:49pm

Re:
I think we ran out of new music in the early 70's!
[ link to this | view in thread ]
Saskia, 24 Nov 2008 @ 5:38pm

Fair use?
The German court did not ruled that the sample was fair use. The court ruled that Kraftwerk's copyright was not violated because the final work was substantially different.

"Judges in Berlin said the two second extract did not infringe copyright, as his song was substantially different." (BBC)

I checked the German sources as well and there was no mention of fair use (I am not even sure if this concept exists in the German legal system).

"Zwar ist laut BGH auch das Sampling "kleinster Tonfetzen" grundsätzlich erlaubnispflichtig, allerdings kann auf die Erlaubnis verzichtet werden, wenn die Tonfolgen in ein neues und klar unterscheidbares Werk eingebaut werden."

Which translates into: the German higher court ruled that generally permission needs to be obtained even when using "smallest sound bites". However one can abstain from asking for permission if the tone sequence is built into a new and clearly different works.

In this respect the court looked mainly at similarity/originality of the two works. It looks like this will be the main test when sampling is considered as copyright issue... My best guess is that the German courts wanted to avoid a flood of such lawsuits, there must be literally thousands of songs that use a couple of Kraftwerk seconds.
[ link to this | view in thread ]
Not Bob, 24 Nov 2008 @ 6:36pm

How to pay the royalty...
If they insist on getting a royalty, then I would insist on paying for the amount of sound I included. As an example, if the original song is 5 minutes long and sold for 99 cents on Itunes and I used 2 seconds of it then they would get (let's see: 5 minutes x 60 seconds = 300 seconds. Divided by 2 seconds shows I used 1/150th of the song. Multiply .99 by .00666 (1/150) and you get .0065999 per copy.) I think it's going to cost more to administer the royalty than it's worth.

Okay, so that's a nutty example but I think it points how foolish the whole idea is...

NB
[ link to this | view in thread ]
penas, 25 Nov 2008 @ 6:21am

Re: How to pay the royalty...
OK, if you agree in the USD0.065 per copy, they will authorize for 1 million copies. You owe them 65 grand. Get it?
That´s why all the whinning.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2013 @ 5:35am

Just to clarify, the Sixth Circuit held that de minimis was not a defense, and that a potential infringer could still assert fair use.

However, I do agree, it was a bad decision.
[ link to this | view in thread ]