"Quand la musique est bonne" or the art of sampling

Written by Antoine d’Huart and Elisabeth Guissart, Avocats à la Cour

Published on 19.11.2019 - Paperjam

"Vynil is so sexy" by (e)Spry - license CC BY 2.0

Sampling is not stealing - or is it? The Court of Justice of the European Union issued a ruling this summer that can be described as fundamental for the music scene. However, the decision is not unequivocal.

In music, sampling is the process of taking a fragment of a pre-existing musical work (such as a percussion loop) and incorporating it into a new work.

The phenomenon of sampling is not new and has, since its appearance, influenced all musical genres, having notably contributed to the rise of hip-hop in the 1980s. But the phenomenon is not limited to this musical genre, and a multitude of artists use sampling by "borrowing" fragments of works from other artists to integrate them into their own creations. Indeed, electronic music producers are particularly fond of pre-existing bass lines. In the same way, sampling is a fundamental element of the "remix" culture. The evolution of new technologies and especially the Internet have obviously contributed to facilitate the access to pre-existing works.

Some works, more or less known at the beginning, have even become real "hits" of sampling. For example, the song "Amen, Brother" by the American funk group The Winstons is one of the most sampled songs of all time.

Of course, from a legal point of view, sampling raises questions, since "sampled" works are protected by copyright and related rights, according to which a work cannot be reproduced without the authorization of the rights holder. A license agreement for use is therefore required in principle ("sample clearance"). But nevertheless, it has always been the essence of sampling to take excerpts from pre-existing musical titles without being authorized by the rights holder...

This is a perilous question that the Court of Justice of the European Union had to decide during the summer. In particular, the Court tried to find a fair balance between the different protagonists of the sampling phenomenon in a case opposing, on the one hand, the producers of a pre-existing musical work and, on the other hand, the authors of a musical work containing a fragment of this pre-existing work1. In fact, the producers of the song "Nur Mir", released in 1997, had, by means of sampling, copied about two seconds of a rhythmic sequence from the song "Metall auf Metall" by the German electronic music group Kraftwerk, released 20 years earlier, without the latter's prior authorization.

Did this unauthorized inclusion constitute an illegal reproduction of the track in question?

Based on the principle of fair balance between the interests of copyright owners (and related rights) and the interests of users of protected works (such as freedom of the arts), the Court held that the reproduction was not illegal if the user, in exercising his or her freedom of the arts, a fundamental right guaranteed by EU law, took the sound fragment in order to integrate it, in a modified and unrecognizable form, into a new work.

If, in a perfectly commendable way, the CJEU has attributed a legal framework to sampling, which therefore constitutes a form of artistic expression falling under the freedom of the arts, its implementation raises questions. Indeed, by imposing the non-recognition of the fragment used, the CJEU makes sampling lose part of its essence. From a practical point of view, it will be complicated to implement. For example, it is difficult to imagine how the works of James Brown, an artist who is copiously "sampled" in hip-hop music, could be used without being identifiable upon hearing...

If there is one thing we can be sure of, it is that sampling will continue to be a hot topic in the years to come. Indeed, the CJEU has not ruled on the degree of denaturation that the fragment used must present, without the authorization of the right holders being required. This leaves the door open to clearly divergent interpretations.

NB: the title of the article refers to a song by Jean-Jacques Goldman released in 1982.

(1) CJEU, 29 July 2019, Case C-476/17, Pelham GmbH, Moses Pelham, Martin Haas v. Ralf Hütter, Florian Schneider-Esleben.

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