An interesting case that has just been decided in Germany surrounding sampling and the extent of copyright protection. In this case a two second drum beat was sampled from a Kraftwerk track and looped to create a drum rhythm for a 1997 hip hop track.
As the question of copyright infringement has been remitted back to the underlying court to be reconsidered, the decision doesn’t provide a definitive answer to the case. However, this is an area of law which has been ‘harmonised’ across Europe so provides guidance as to the factors which can be taken into account when considering copyright infringement claims.
Under UK law, the question of whether copyright has been infringed will be a depend on whether a substantial part of the original work has been copied.
Substantial part is assessed on a case by case basis, but is a qualitative assessment (i.e. what is the value and importance of the parts that have been copied to the work as a whole).
In this case the part sampled is small, so the German courts view is that it would be unlikely to infringe Kraftwerk’s copyright. The new track which had been created was an autonomous work of art regardless of the sample used. More interestingly, the court also held that the original decision had failed to consider the severe restrictions the original decision would have on certain music styles.
A question remains though because, if an artist has chosen to sample that specific element, there must be an intrinsic value to it. Otherwise why not create the drum beat yourself?
The German have deliberately left open the scope for a law to be introduced which would allow for fees to be charged for sampling. However, given the number of international and European treaties on the subject, such a change will have to be approved by a broad number of countries.
Germany’s highest court has ruled in favour of a hip-hop artist who used a two-second sample of music from the pioneering electro-pop band Kraftwerk.