Monday 17 October 2011

Metall auf Metall II – The Curious Case of Free Use and Sampling

Kraftwerk album 'Trans Europa Express'
Sabrina Setlur single 'Nur Mir'
I have only now got around to reading and reporting on ‘Metall auf Metall II’ – a case on free use and sampling decided by the Higher Regional Court of Hamburg (OLG Hamburg) on 17 August (case reference 5 U 48/05). The facts of the case are as follows:

The claimants are members of famous German band ‘Kraftwerk’. In 1977, they released a record that included the title ‘Metall auf Metall’ (‘metal on metal’), which they also produced.

Twenty years later, German rapper Sabrina Setlur had a hit with her title ‘Nur Mir’ (which in context translates as ‘to me only’). The defendants are the producer and the composers of ‘Nur Mir’. They sampled a sequence of two seconds from ‘Metall auf Metall’, put it on a loop and used it as the continuous rhythmic layer for Ms Setlur to rap over on ‘Nur Mir’.

According to the claimants, this constitutes an infringement of their neighbouring rights as producers of the sound recording ‘Metall auf Metall’ (§ 85 (1) (1) UrhG; German law provides no author’s right protection for sound recordings).

The case has already been all the way to the Federal Supreme Court (BGH), was reversed and remanded, and now the OLG Hamburg has granted leave to appeal on legal grounds again because the judges don’t seem too sure they have reached the right conclusion this time round.

In a nutshell, the conclusion they did reach was that ‘Nur Mir’ constitutes an infringement because it would not have been unreasonably cumbersome to produce a ‘sound-alike’ rhythm sequence.

In the decision that reversed and remanded the earlier judgment by the OLG, the BGH held that § 24 UrhG on free use applies mutatis mutandis to neighbouring rights. § 24 UrhG reads:
(1)   An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.

(2)   Paragraph (1) shall not apply to the use of a musical work where a melody has been recognisably borrowed from the work and used as a basis for a new work.

According to the BGH, § 24 (1) BGH does not apply if it is possible to produce the sampled sound sequence independently, or if the sampled sequence is protected as a melody under § 24 (2) UrhG.

Independent Work

In order to be an independent work created by free use for the purposes of § 24 (1) UrhG, the new work must keep sufficient distance to the borrowed original traits of the used work, to the extent that the original traits of the elder work fade into the background in view of the originality of the new work (established BGH case law). Quite when that is the case is a bit of a mystery, though. Especially in cases on parody, courts and commentators do rather a lot of squirming and modify the requirement of ‘fading to the background’. It is said to suffice if the new work keeps a great ‘inner distance’ to the work from which it borrows, especially if an ‘artistic engagement’ (‘künstlerische Auseinandersetzung’) with the borrowed work takes place, but also if the ‘inner distance’ is realised by some other means in the view of an independent observer who knows the elder work but also possesses the intellectual understanding required for the new work. In principle, though, the standard is a strict one. Are you confused yet?

In any case, the OLG found that ‘Nur Mir’ possessed an entirely different character from ‘Metall auf Metall’, even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn ‘Nur Mir’ into an independent work according to § 24 (1) UrhG.

Rhythm vs Melody

Fans of Stomp or will be disappointed to learn that a rhythm section does not qualify as a melody for the purposes of § 24 (1) UrhG. Unequivocally rejecting musicologist definitions as too vague and nondescript, the OLG judges reiterated the case law definition of melody as a ‘self-contained and ordered sequence of notes’ (‘in sich geschlossene und geordnete Tonfolge’). § 24 (2) UrhG does not preclude the borrowing of harmonies, rhythms, original instrumentations or special sound effects because such features do not constitute a melody. They held that the short sequence from ‘Metall auf Metall’ was a ‘rhythm surface’ (‘Rhythmusfläche’) comprised of overlapping ‘shreds of notes’ (‘Notenfetzen’). The result may be original and attract copyright protection as a musical work, but it is not a melody. The court also mentioned that § 24 (2) UrhG is a very controversial piece of legislation anyway and as such should be interpreted narrowly.

Possibility of Producing a Sound-Alike

So far so good for the defendants, but their case dies here. The BGH did not provide any guidance as to the criteria that should be met to find for a possibility of producing a sound-alike, so the OLG came up with its own definition. Given that ‘Nur Mir’ was produced professionally and for commercial purposes, the skills and technological possibilities open to a music producer with average equipment are decisive; the reference point is the time when sampling took place (1997 in the case at hand).

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting. Expert witnesses managed to produce an equivalent sound-alike to the ‘Metall auf Metall’ sequence in less than two days. The court held that this was a reasonable amount of time to ask before permitting someone to encroach upon another’s rights without having to seek permission and free of charge. The judges were not entirely certain whether they got these criteria right, though, which is why they granted leave to appeal on legal grounds to the BGH once more.



Andrew Robinson said...

I'm always very interested when a sampling case isn't just settled out of court, as it's an area of law that (anecdotally) seems to be short on case law and long on 'the bug guy wins'.

Two things strike me as very odd about this case. Firstly, having listened to Sabrina Setlur on youtube and Kraftwerk on CD (yes, pirates do pay for physical products!), I see absolutely no overlap between the fanbase of the two acts, and very little relation between the two tracks. Nobody could conceivably decide not to buy Trans Europe Express because they bought Nur Mir instead (not the case with Planet Rock by Afrika Bambaataa and Soulsonic Force who famously sampled a much bigger slice of the album), and nor is anyone likely to buy TEE because they wanted to hear the original source of what is (after all) just a few metal clonks.

Secondly, why does the law encourage soundalikes? Who (apart from session musicians) stands to benefit morally or financially from replacing a sample with a sound alike?

Monika said...

Thanks for your comment, Andrew. I agree it is a very odd case indeed. There wouldn't even have been any session musicians who would have profited because the producer could have replicated the sound with a synthesizer. In any case, session musicians would profit more in principle if it were prohibited to sample 'complicated' bits instead of easily-replicated ones. In effect, what the BGH and OLG have done is introduce an originality requirement for neighbouring rights in reverse and through the back door - the mind boggles.

Good point about the different fanbases. I think it is rarely a good outcome if a work is removed from circulation, especially if it does not interfere with commercial exploitation or moral integrity of the older work. I haven't given this much thought yet, but perhaps in such cases (and where there is no free use and the parties cannot agree to a licence fee) a model of damages for past and future uses (in other words something like a compulsory licence) would be a good idea?