The chilling effect of “kraftwerk I/II” on sound sampling

Using even a two-second sound sample can infringe the related rights of the phonogram producer. Like the seven-differences myth 2 in the field of design, the rumor in the music world has been that a six-second sample is permitted. If it was not already clear that this is not the case, the German Federal Court of Justice, the Bundesgerichtshof, recently sent the six-second rumor off to the land of fairy tales. In its two rulings in “Metall auf Metall I/II”” (the cases are also known as “Kraftwerk I/II”) the German Federal Court of Justice clearly stated that any take-over of any sound fragment recorded in a phonogram - however small - can infringe the related rights of the phonogram producer. That means that the phonogram producer has what amounts to an absolute right to its sound recording and its investment in it enjoys maximum protection. Good news for the phonogram producers, bad news for users of sound samples. There has already been great to-do about sound sampling in the international music world. Here is an overview.

To sample or not to sample

Sound sampling is a special way of using music that takes and repurposes often small snippets of existing musical works and/or music recordings, other sounds, and/or voices in new music productions. The development of the technology has had great influence on the nature and extent of sound sampling. Where the equipment needed to sample was quite expensive well into the 1980s, newhardware and software has gradually appeared on the market that has made digital sound sampling quite a bit cheaper and easier. Today it is possible to sample from home - as they say - with one push of a button. The use of sound samples in new music productions has consequently increased, exponentially.

The reasons3 to use a sound sample vary widely. One obvious reason is to derive commercial benefit from the popularity of another’s music production. Other, perhaps less obvious, reasons for the use or reuse of fragments of music productions can include making a musical tribute to a particular artist, the parody of existing music productions, the up-dating of music productions, the artistic modification of fragments of music productions, combining specific samples together into new music productions, and to lend a new music production an aura of authenticity with the aid of fragments of original music productions.

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