Bundesverfassungsgericht: Sampling is permissible under certain circumstances

Bundesverfassungsgericht: Sampling is permissible under certain circumstances

Bundesverfassungsgericht: Sampling is permissible under certain circumstances

The Bundesverfassungsgericht, Germany”s Federal Constitutional Court, recently had to grapple with the issue of whether greater value ought to be attached to artistic freedom or copyright law in a given case. In its judgment of May 31, the Court chose to bolster artistic freedom (Az. 1 BvR 1585/13).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The legal dispute in question concerning what is referred to as “music sampling” had been brewing for years. A song from a rapper had been mixed from a roughly two-second-long sequence from another band”s song and turned into an endless loop. The band viewed this as a violation of its copyright in relation to this piece of music and brought legal actions before various courts. The Bundesgerichtshof (BGH), Germany”s Federal Court of Justice, granted the action.

However, following a ruling of the Bundesverfassungsgericht, the BGH must now revisit its decision. The Constitutional Court took the view that not all of the key issues had been sufficiently considered. The judges held that sampling is a fundamental style element of the musical genre hip-hop and that this type of art form is virtually impossible without it. With respect to the instant case, they said that sampling had clearly resulted in a completely new and independent piece of art. What needed to be considered, therefore, was whether copyright law should take a back seat to artistic freedom, at least in the event that the economic damage or loss to the copyright owner is assessed as being very marginal. The BGH is now tasked with reviewing the case in light of these considerations and stipulations of the Bundesverfassungsgericht. The conflict between artistic freedom and copyright law thus enters its next phase.

Copying, plagiarism and copyright law are significant issues in the music industry among others. Copyright law serves to protect intellectual property both from a conceptional and material perspective. In contrast to trademark law and patent law, there is no register for entering trademark rights. For this reason, adducing evidence is not without its difficulties in some cases. According to the Bundesverfassungsgericht”s ruling, it is also important to bear in mind that copyright law may have to take a back seat to other rights as the case may be. In order to avoid infringements of copyright law and protect oneself against these, it is a good idea to consult a lawyer who is versed in the field of copyright law.


GRP Rainer Rechtsanwälte Steuerberater is an international law firm specialized business law. In Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London, the firm advises in particular in the fields of the entire business law, corporate law, tax law, as well as capital markets and banking law. Our clients include national and international companies and corporations, institutional investors, and private individuals.

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