Thou Shalt (Not) Sample? New Drifts in the Ocean of Sampling

Abstract

The status quo of the pre-2014 period with respect to musical sampling was that any taking of the whole or a portion of a sound recording (embodying musical compositions and musical performances) might run against the economic – and, in the Continental European droit d’auteur/Urheberrecht systems, the moral – rights of the respective rightholders (authors, performers and/or sound recording producers). The sampler might excuse himself from liability if the unauthorised use can fit into the frames of any limitation or exception, including the fair use doctrine under the laws of United States. Limitations and exceptions cannot provide any shelter for samplers with respect to moral rights. Both U.S. and German practice have continuously applied such potential excuses tightly. In one of the most important sampling decisions ever, the Sixth Circuit has noted in its bright line rule that the prior authorization is a prerequisite to any lawful sampling (“get a license or do not sample”). Similarly, the Sixth Circuit also refused to apply the exception of de minimis for sampling cases in this ruling.

In the most important German ‘sampling’ ruling, the German Federal Supreme Court (hereinafter: BGH) similarly excluded the applicability of the concept of de minimis, when it found that the sound recording producers’ rights are infringed by the taking of even the smallest of sound samples. Further, it has been declared as a bright-line rule that the sampler cannot apply the concept of “free use” (“freie Benutzung”) of the German Copyright Act, in a case where he could have been able to record the taken segment individually.

Such a limited approach may be dangerous. Sampling has become a fundamental element of modern music industry, especially for hip-hop and electronic musicians. If all samples would require prior authorization, it could chill musical self-expression – an important part of the modern “pop-culture”. Not to mention that a bright-line rule, like the one in Bridgeport, would lead to a de facto monopoly of copyrights, and/or of the rights of sound recording producers, which should not be the ultimate goal of any copyright regime. Naturally, the exact opposite of this argument, namely, that all samplings are to be treated lawfully, is similarly false, and neither will this paper take such a position.

This article aims to introduce the post-2014 U.S. and German sampling rulings. According to the chronologic order, the paper starts with the American cases (Part I), followed by the German rulings (Part II). Part III provides for a critical analysis of the latest developments, and discusses the possible outcomes of the pending Pelham ruling of the Court of Justice of the European Union.

Keywords: sampling, Pelham case, VMG Salsoul case, fair use, de minimis, artistic freedom, CJEU, fundamental rights

JEL Classification: L00, K11, K19, K33, K39, O34