English Translation: Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008

Abstract

This is a translation of a landmark decision by the highest German civil court (“Bundesgerichtshof”) on music sampling: Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008. The translators have added a few introductory paragraphs preceding the translation to highlight the importance of the Kraftwerk decision. The rest of the abstract consists of excerpts from these introductory paragraphs.

The decision is of great importance because it was the first music sampling case heard by Germany’s Federal Supreme Court — Germany’s highest civil law court. The Federal Supreme Court gave the case the official title of Metall auf Metall, which is the name of the song that was sampled in the case. The case is also known as the “Kraftwerk Decision” in German legal circles, which refers to the plaintiffs - a very influential German musical group who pioneered modern electronic music.

In deciding this case, the German Federal Supreme Court ended a twenty-year-long controversy in Germany regarding the issue of whether the sampling of small parts of a sound recording constituted an infringement of the producers’ neighboring rights in the sound recording. The Court also held that the German Copyright Law doctrine of "Freie Benutzung" applies to neighboring rights just as it does to copyrights, although this is not explicitly stated in the German Copyright Act. Although "Freie Benutzung" literally translates to “free use,” the reader should not equate this German legal concept with the U.S. legal concept of “fair use,” as the elements and scopes of both concepts differ considerably.

The Kraftwerk Decision mirrors, in many ways, the Bridgeport Music, Inc. v. Dimension Films case decided by the Sixth Circuit in 2005. Both cases dealt with the issue of music sampling of sound recordings and a determination of how much of a sound recording must be used to constitute infringement. Both courts held that the quality or quantity of sampled material is irrelevant in the determination of whether there has been an infringement of a party’s exclusive right to reproduce and distribute their sound recording. Both courts ultimately held that if it is proven that any part of a protected sound recording has been copied without permission, then infringement has occurred (although the Bridgeport decision did not determine whether a “fair use” defense might apply in such a case). The courts, therefore, came to the same conclusion. Interestingly, however, the law that the Sixth Circuit and the German Federal Supreme Court used to come to their conclusions is quite different.

Keywords: Kraftwerk, Sampling, Sample, Music Sampling, Digital Sampling, Germany, Urheberrecht, Leistungsschutzrecht, Phonogram, Freie Benutzung, Tonträgerhersteller, Bundesgerichtshof, Free Use, Neighboring Right