Complaining Work

Defending Work

Ralf Hütter, Florian Schneider-Esleben [“Kraftwerk”]

“Metall auf Metall”

Audio clip

Moses Pelham, Martin Haas

“Nur mir”

Audio clip

 

Updated Comment by Charles Cronin

It’s not over until it’s over… In its decision exonerating the Defendants for unauthorized copying of a brief portion of Plaintiffs’ work the Federal Court of Germany noted that the Court of Justice of the European Union might reach a different conclusion based on its interpretation of the 2001 E.U. Copyright Directive. In July 2019 the E.U. Court decided (ruling below) that courts must adhere strictly to the Directive, and not limit author’s rights it establishes by invoking freedom of expression and flexible fair-use approaches found in U.S. copyright jurisprudence.

Comment by Charles Cronin

This claim was initiated by the apparently tetchy Germany pop group Kraftwerk, which specializes in electronic sounds. The disputed material is a two-second snippet lifted from one of the defendants’ recordings, and looped as part of the background sound of the defendant’s song “Nur mir” (“Only Me”).  The snippet has no musical originality, and the plaintiffs’ claim is based on their assertion that unauthorized and unremunerated copying of any amount of sound from their protected recording violates their property right in it.

The lower court agreed with the plaintiffs, which prompted this appeal by the creators of “Nur mir” to the Federal Constitutional Court; this court overturned the lower court’s decision. Its rationalization of its judgment is interesting for American readers in that it blends well-known concepts of US copyright law with issues of artistic freedom and the concept of “free utilization” of German copyright. (Linked below is an English language summary of the court’s decision; for the linguistically intrepid, the full text of the decision in German as well.)

“Free utilization” is akin, but not identical, to the “fair use” provision in US copyright law.  Determinations of legitimate “free utilization” depend not so much on what preexisting protected material was lifted, but rather on how attenuated that material is to the core – and economic value — of the latter work in which it is utilized.

Here the court determined that the lower court did not properly balance the plaintiffs’ property interests in their sound recording, and the defendants’ fundamental right of artistic freedom. The court noted that the fact that defendants lifted the actual sounds from the plaintiffs’ recording, rather than creating a “sound alike” recording of their own, did not render their conduct culpable. This is because the court found that use of a sample of the actual preexisting work is a creative component of the musical genre of the defendants’ work, and therefore permissible artistic expression. Moreover, the court rationalized, the defendants’ use of the plaintiffs’ sound clip did not result in economic disadvantage to the plaintiffs.

The court’s discussion is interesting too in that it reflects, naturally, Germany’s civil law tradition. The court supports its decision with references and analyses of only statutory law, with no mention of case law precedent.

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Summary of the German Constitutional Court decision (English): PDF

German Constitutional Court decision (achtung! auf Deutsch) (2016): PDF

EU Court of Justice, Decision (July 2019): PDF