The German Supreme Court (BGH) clarified last week that sampling does not infringe on copyright in the work from which samples were taken for the purpose of creating a new work. There is a catch hiding in the details, though.
According to the official press release (in German), the highest judicial authority in Germany ruled that a certain statutory exception principally covered instances of sampling. The relevant exception is anchored in section 24 to the German copyright act, known as “free use” (freie Benutzung). Free use is not fair use, but you can think about it as an extreme version of the transformativeness element familiar from the U.S. fair use analysis. Accordingly, the new work must transform the work of which elements it uses into something independent and wholly different. While using the copyrighted elements taken from the prior work, such use should be so transformative that the first work becomes hardly recognizable as the source.
There are two additional constraints on the application of the free use exception in the case of music. First, you are not allowed to use recorded portions of a sound recording for your new song without permission if you are capable of playing it yourself. Second, concerning musical works, a “melody” taken from the early piece should not be recognizable in the new, standing-alone piece. (The BGH once legally defined melody as an “in itself a closed and ordered tone sequence, that confers upon the work its individual imprinting.”)
So the scope of this sampling exception is quite narrow. If its conditions are not cumulatively met, the sampler might end up facing infringement liability. Interestingly, free use was the main legal defense in the thumbnails case I blogged about here. There, the court refused to apply the exception since it considered the way search engines used the images on their result pages not sufficiently transformative. That case was appealed and the BGH is likely to say its word on this issue too.