On 31 May 2016, the German Federal Constitutional Court (Bundesverfassungsgericht – “BVerfG”) issued a judgment in favor of a Hip-Hop artist (“Artist”) who had used a 2-second-sample of Kraftwerk’s song “Metall auf Metall” (the “Judgment”). The BVerfG held that the use of samples for artistic purposes is protected by the artistic freedom and, at the case at hand, shall prevail over the phonogram producer’s rights.

The BVerfG annulled an earlier decision of the Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH). In particular, the BVerfG held that the FSC had not adequately balanced the rights of the phonogram producers on the one hand, and the artistic freedom of the Artist, which is protected under Article 5(3) of the German Constitution, on the other hand; in the FSC’s view the Artist had infringed the phonogram producers’ rights under Section 85 of the German Copyright Act (Urhebergesetz – UrhG). Further, the FSC was of the opinion that the use of samples could not be legitimized by the so-called free-use exemption under Section 24 UrhG. Consequently, the FSC held that even the use of the smallest tone sequences should qualify as illegal infringement of the phonogram producers’ rights.

The BVerfG pointed out that the FSC’s narrow interpretation would not adequately take into account the broad scope of the Artist’s fundamental rights, i.e., his artistic freedom. In particular, the BVerfG explained that a requirement to obtain a license for use of the samples would unreasonably limit the Artist’s artistic freedom. This shall in particular be true for the Hip-Hop culture, since the use of samples has always been a stylistic characteristic of the Hip-Hop culture. Also, the BVerfG explained that the Artist shall not be required to record the samples on his own. Further, the BVerfG emphasized that sampling of small tone sequences does only have a minor impact on the economic interests of the relevant right-holders.

The BVerfG referred the case back to the FSC which is now asked to issue a new decision, considering the BVerfG’s deliberations in the Judgment. Further, the BVerfG emphasized that the FSC shall assess whether the EU Copyright Directive prevails over the applicable provisions of the UrhG. In cases of doubts, the FSC shall refer the case to the Court of Justice of the European Union (CJEU) for a preliminary judgment, according to Article 267 of the Treaty on the Functioning of the European Union.