Kraftwerk Case’s ‘Chilling’ Consequences for Sampling
Producers who use samples of anyone else’s master recording, no matter how small and no matter whether they use it commercially or not, risk ruinous legal action, according to a new report by legal expert Bjorn Schipper.
The Dutch music and entertainment lawyer has published a fresh report on the international implications of the recently reviewed (and upheld) 2008 Kraftwerk case when German judges decided that anyone using ‘even the smallest shreds of sounds’ from tracks had infringed neighboring rights in which he concludes that samplers have no cast iron legal defence.
“Sampling will always – however small the sample – be intentional and knowing and therefore not by chance, with the object of its integration in and increasing the value of the new (music) work in which the sample is used. The use of a sample is therefore never a minor detail of a chance processing of a music fragment,” he writes.
“The taking over of a sound fragment laid down in a phonogram – however small sometimes – can already constitute infringement. The possible economic benefit to the sampler is not relevant here.”
Bjorn joins US attorneys Gary Adelman, Jeff Gandel and UK expert Dean Marsh to speak at Amsterdam Dance Event on Wednesday October 15 for the panel ‘Everything you need to know about sampling and not being sued’.
English Translation: Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008):
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