Dark Sanctuary v. Bushido

Comment by Charles Cronin

“Bushido”, the name of the band that created the defending work, refers to a chivalric code of conduct once subscribed to in Japan in the 17^th and 18^th centuries by Samurai warriors. However, there appears to be little chivalric about the Defendants’ conduct, which prompted this dispute. Not only did they sample and loop portions of the Plaintiffs’ recording without authorization, but overlayed these samples with misogynist, violent, and obscene language, attempting to demonstrate a transgressive posture typical of U.S. rappers.

The judgment of the Federal Court of Justice exhaustively examines the various arguments for and against liability and, ultimately finds the Defendants liable, and allocates damages among them. The damages analysis involves close examination of arcane GEMA (German performing rights organization) royalty calculations on which we will not dwell. But we will identify one or two interesting copyright issues raised by the parties and considered by this court.

The Defendants claimed that the portion of the Plaintiffs’ work that they sampled did not contain sufficient musical expression to warrant protection. The Plaintiffs’ 4-measure motif is utterly trite, a noodling melody played on a piano (presumably synthesized piano sound) over a simple string accompaniment (no doubt also synthesized) playing two harmonies. But the court, emphasizing copyright’s low threshold of originality, rightly found the 4 measures to evince protectable authorship copied by Defendants, despite their claim that their melody deviated from the Plaintiffs’. (See Jonathan Huber’s excellent presentation – above – of music notation of the two melodies… and how, despite the subtle musical differences between them, they sound virtually identical to the undiscriminating ear.)

Defendants also claimed that their copying of the Plaintiffs’ music (and sound recording) was permissible under the concept of “free use” because they altered the portion they sampled in their work and used it in an entirely different context than did the Plaintiffs – as an ambient sound behind their added drum line and obscene spoken (“rapped”) words. This argument did not impress the court, which instead considered whether the Defendants had violated the Plaintiffs’ moral rights, both by distorting the sampled sound of the Plaintiffs’ work, which they used in theirs (Defendants used the curious expression “ ‘Mickey Mouse’ distortion effect”) and also by associating their offensive words with the Plaintiffs’ music (the court noted that a number of Defendants’ titles had been indexed by the German Federal Inspector of Media Harmful to Children).

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German Federal Court of Justice decision (German) (2015): PDF

Google-translated rough English version of Court decision: PDF