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Abstract:
The constitutional scope and limits to copyright law in the United States in comparison with the scope and limits imposed by constitutional and European law on copyright law in Germany.

Constitutional Copyright Law, Urheberverfassungsrecht, Intellectual Property Clause of the EU Charter of Fundamental Rights, natural law foundations of copyright law, copyright law as mere positive law

Abstract:
This is a translation of a landmark decision by the highest German civil court on music sampling. In the beginning there is a short introduction into the decision and translation to make the English speaking audience aware of the pitfalls and misunderstandings that we tried to avoid while translating the key copyright terminology of this case into English.

On November 20, 2008, the German Federal Supreme Court (“Bundesgerichtshof”) handed down its decision in the Kraftwerk, et al. v. Moses Pelham, et al. case. 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. Kraftwerk is considered the pioneer of modern electronic music and, as such, its music is often sampled.

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. 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.

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

Abstract:
This translation to English is the second translation in the the translation series in the Cardozo Arts & Entertainment Law Journal (CAELJ Translation Series #002). The translators welcome comments.

This is a translation of a Swiss Federal Supreme Court decision from December 21, 2006, regarding the issue of trade dress in the context of candies. The parties are two Swiss companies: Nestlé Schweiz AG (“Nestlé”) and Masterfoods AG (“Masterfoods”). Masterfoods sought an injunction against Nestlé’s launch of its new candy, Kit Kat Pop Chocs, which were round, bite-size versions of Nestlé’s Kit Kat candy bar. Masterfoods claimed that the trade dress used by Nestlé on its Kit Kat Pop Choc packaging infringed its trade dress for its Malteser candy, which are malted milk balls.

The Swiss Supreme Court upheld the lower court’s injunction against Nestlé. The court used many traditional trademark concepts in its analysis. The court noted that Masterfoods had shown that the trade dress for its Maltesers candy had gained secondary meaning. The court then held that Nestlé’s trade dress for its Kit Kat Pop Chocs would cause an indirect likelihood of confusion with Masterfoods’ Maltesers trade dress, despite the two trade dresses clearly having different logos. The reason for this was that Nestlé’s packaging, taken in its entirety, was so similar to Masterfoods’ Malteser packaging that Nestlé would be taking advantage of the good will acquired by Masterfoods. It was irrelevant that elements of the packaging, i.e., red background, depiction of chocolate balls, etc., were, as isolated elements, in the public domain. In addition, the court made note of the important fact that these are relatively inexpensive goods that are impulse buys by inattentive consumers. Therefore, the fact that the two candies had prominently displayed logos that were clearly different did not have much significance. Such consumers will likely assume, based on the similarity of the trade dress as a whole (which included the logos), that Nestlé’s Kit Kat Pop Chocs are a similar candy to Masterfoods’ Maltesers or that the Kit Kat Pop Chocs are made by Masterfoods or a company affiliated with Masterfoods.

This is an ongoing battle between Nestlé and Masterfoods. Masterfoods also sought an injunction against Nestlé in Belgium. The Antwerp Court of Appeals held for Nestlé, using completely different reasoning than the Swiss court. The Belgium court held that Masterfoods’ trade dress for its Malteser candy lacked any distinctiveness. The Belgium court seems to have reasoned that the Malteser trade dress consisted of common, non-distinctive elements that were common in the relevant market and that, even when taken as a whole, such elements cannot be combined to create a distinctive, protectable trade dress. The court held that if any likelihood of confusion did exist between the two products, the distinctively different logos on the packaging would dispel any such confusion.

Swiss Trademark Law