Sampling is an infringement on the rights of the producer of a phonogram if, without authorization, use is made of fragments. That advises the attorney-general at the European Court of Justice ruled in a case regarding the German cultgroep Krafwerk, who for more than 20 years time. The Court itself later cut the knot.
Ralf Hütter and Florian Schneider-Esleben, members of the legendary German group, have been around since 1997 the courts down to the, in their opinion, improper or unauthorized use of two seconds of quality percussion sounds from their ‘Metall auf Metall’ (1977) by German rapper Sabrina Setlur in her song ” Nur mir (I) convicted. The song was written by the German rapper and producer Moses Pelham.
Hütter and Schneider-Esleben that the claim is infringing is located on the neighboring right of which they, as producers of the album holder. The German federal court of justice drew thereon to the Court of Justice of the European Union in Luxembourg to more text and explanation to questions about the European rules on copyright and related rights.
In his conclusion put the attorney-general explained that a “phonogram” a fixation of sounds is which is not protected by the composition of those sounds, but because of the commit. A phonogram is protected as an indivisible whole. As soon as a sound or a word is defined, it is a phonogram that is protected. Immediately the reproduction under the exclusive right of the producer.
In addition, the attorney-general that the right to protection of the phonogram is separate from the protection of any on the album recorded work. The extent of the protection depends not on the size of the protection of the work on the phonogram. There, the advocate-general that without the consent a fragment of the phonogram to take and use on a different phonogram – sampling, thus, infringes on the rights of the producer.
The opinion moves on to the domain of the artistic freedom. That is not a priority on the exclusive right of the fonogramproducenten to the reproduction of any parts thereof, to allow or to forbid? According to the advocate-general means the obligation to be for a use in this case obtaining a license, not that the freedom of the arts is limited in a way that the normal requirements of the market exceeds.