Why This German Copyright Case is Big News for Hip-Hop Sampling

By | Posted May 31, 2016
A new court decision should serve as a powerful reminder to producers that not every sample needs to be cleared.
2016-05-31-copyright-case-hip-hop-sampling

For the last fifteen or so years the music industry has done such an exceptionally good job of convincing people that an uncleared sample is tantamount to outright theft that even a lot of sample-based producers feel the same way about their art. One way to look at that is to say copyright holders are being protected, and that's a good thing. Another way to look at it is to say that big business has crushed artistic freedom, and that's a bad thing.

Per usual, both of those things are simultaneously true, except we almost always only hear from the anti-sampling side. That's why I so quickly noticed a news report on a copyright case in Germany in which the courts not only ruled in favor of sampling - a rare thing - but did so on the grounds that sampling is an art form that deserved protection - an even rarer thing. 

Long story short, this German producer sampled a small drum section of Kraftwerk's "Metal on Metal" for the hit German hip-hop/R&B song "Nur Mir," and Kraftwek sued. (Yes, German hip-hop/R&B is a real thing, and yes, any hip-hop head should recognize Kraftwerk's name.) You'd expect the case to be a slam dunk victory for Kraftwerk, but nein, instead the courts ruled that the sample was so small it was negligible and that “artistic freedom overrides the interest of the owner of the copyright." 

I know that sounds like boring legal talk, but let me try to translate why it's a big deal. In America, we're coming off the "Blurred Lines" case, in which Robin Thicke and company lost not because they'd sampled Marvin Gaye, but because it sounded like they coulda-maybe-kinda tried to sample Marvin Gaye without actually sampling Marvin Gaye, a decision that I wrote could have a chilling effect on new music creation

So to hear a court recognize that sampling is an art form and that, like any art form, protecting and nurturing it is a public good, is like hearing you Mom say, "You know what? You're right, you shouldn't have a curfew. Go out with your friends, and while you're at it, take my car." It feels odd to see the moment you never thought would happen actually happen.

...the Constitutional Court acknowledged the important role that sampling plays in hip hop and found that upholding Hutter’s complaint would "practically exclude the creation of pieces of music in a particular style" - Billboard

Now, this case is obviously in Germany, but it still has some implications for American-based copyright law and sampling. Hey producers, did you know that the same copyright principle for the German case is in place in the U.S.? It's called "de minimis" - basically, if the sample is small enough, it legally doesn't have to be cleared. 

Crucially though, there's no strict definition, no set time length, of what defines "de minimis" sampling. A two second sample in the chorus of a song could be considered prominent, while a four second drum loop that only appears once in an outro could be considered negligible, and that's the point. Copyright law was originally designed to try to strike a compromise between the copyright holder's interest with the public good's interest in the free transmission of ideas and art. This is music, not a mathematical formula, and whether or not a sample is legally free and protected or needs to be cleared demands a case-by-case analysis.

But that case-by-case spirit has been crushed by powerful publishers who try to frame all uncleared samples as theft and, even when they know a sample is legal, sue anyway, counting on the sampling producer to be so intimidated, unfamiliar with the law and unable to match legal resources, that they settle or admit guilt, even when their sampling was completely legal. 

It should be obvious that I'm not suggesting that sampling should be completely free and unrestricted, far from it. I'm writing that music works best when there's a balance between the copyright holder and an artist's free ability to transform old art into new, and that right now balance is now dangerously titled. It may be a reach to look to a German court case for hope that the balance could one day be restored in the U.S., but right now I'll take all the hope I can get.  

By Nathan S, the managing editor of DJBooth and a hip-hop writer. His beard is awesome. This is his Twitter. Photo Credit via Radiofy.

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