Mezei Péter, De Minimis and Artistic Freedom: Sampling on the Right Track?

For many years, U.S. and European case law has offered a negative and restrictive interpretation on the sampling of sound recordings. Courts have traditionally deemed sampling as an infringement on the copyrighted material (and in Europe the related rights), even if the sample lasted for less than 2 seconds. Several notable precedents have been published in the wake of the first ruling on sampling, published in 1989 in the U.S., all of which have confirmed this interpretation. However, more recently, four decisions have been published, two in the United States and two in Germany, which deviate from this line of jurisprudence. It is these decisions which will form the crux of the analysis within the present article. To outline them briefly, the TufAmerica and the VMG Salsoul rulings highlighted that the de minimis test applies to the sampling of trivial portions and thus liability is excluded in such situations. The German Goldrapper ruling of the Federal Supreme Court (BGH) and the Metall auf Metall III decision of the German Federal Constitutional Court (BVerfG) have also opened the doors for sampling in Continental European legal systems. The Goldrapper ruling focused on the length of the sample, whilst the BVerfG in Metall auf Metall III introduced a novel discourse based on fundamental rights, concluding that sampling functions as a practical example of artistic freedom. Nevertheless, it remains unclear whether the ECJ will accept such an interpretation. However, this may become clearer in the not too distant future with a preliminary ruling being initiated by the BGH in June 2017. This article will analyze these four cases, as well as offer a view on the possible outcome of the preliminary ruling.