The CJEU rules that sampling does not violate copyright if it is a tribute or “artistic dialogue” with the original song

The Court of Justice of the European Union (CJEU) this Tuesday endorsed the ‘sampling’the use of already recorded samples to create a new song with said sound, without the authorization of the producer of the phonogram, as long as it falls within the definition of ‘pastiche’ and the sound is used as a tribute or “artistic dialogue” with the original work.

The ruling refers to the case of the music group Kraftwerk, whose members They accuse the Pelham production company of copying, using the ‘sampling’ technique, approximately two seconds of a rhythmic sequence from the work ‘Metall auf Metall’ (1977) that they later inserted, repeated in a loop, with minimal modifications and in a recognizable way in the song ‘Nur mir’ (1997) and claimed compensation for damages.

In a consultation from the German Supreme Court to the CJEU, the high European court clarifies that this practice is legal since the entry into force in Germany, in June 2021, of an exception which allows the use of works for caricature, parody or pasticheand which has its origin in European Union Law, despite the fact that in 2019 it confirmed that sampling violated the rights of the original producer if it was done without its authorization.

With the new regulations in force in Germany, the CJEU clarifies that the concept of ‘pastiche’ allows the use of elements protected by copyright to establish a “artistic or creative dialogue” that is recognizable as such. This dialogue can manifest itself in various ways, including a “open style imitation“, a tribute or even a “humorous or critical confrontation” with the original work.

However, the court warns that this exception does not protect plagiarism or “covert imitations” in any caseand requires that the new creation be differentiated from the previous one in a “perceptible way” from the original work.

Furthermore, to determine whether a use of a phonogram is made for the purposes of pastiche, it is sufficient that its character “is recognizable to people who know the existing work” from which elements have been borrowed, so the CJEU considers that “it is not necessary to establish that the user intended to use the work for that purpose.”

In this way, according to the CJEU, “both a fair balance between the protection of the freedom of the arts and that of copyright and legal certainty” is guaranteed.

The courts of the Member States can consult the CJEU on the interpretation of Union law, although the final resolution of the dispute corresponds to the national court in accordance with said decision. It will now be up to the German Supreme Civil and Criminal Court to issue a ruling in the conflict between Kraftwerk and Pelham following the criteria established by the CJEU, a decision that will also bind other European courts in similar cases.