Announcement of the sampling judgment of the German Constitutional Court

The German Constitutional Court (Bundesverfassungsgericht) announced its judgment in the case between the music producer Moses Pelham and the music group Kraftwerk. GvW partner Prof. Dr. Christian Winterhoff represented Kraftwerk at the announcement of the judgment before the German Constitutional Court.

The conflict that has lasted for 18 years involves a two second sound sequence from a piece of music by the group Kraftwerk. Pelham had used the sequence from the year 1977 twenty years later without permission in a song for the singer Sabrina Setlur. This use of parts of music in a new context is referred to as “sampling”. Kraftwerk had then filed a cease and desist claim and a complaint for damages and won both before the Hanseatic Court of Appeals in Hamburg as well as before the Federal Supreme Court of Justice (Bundesgerichtshof). Pelham filed and objection under constitutional law against the decisions, together with various other artists, including Sarah Connor and Bushido.

The German Constitutional Court granted the constitutional objection, lifted the judgements of the Federal Supreme Court of Justice and the Hanseatic Court of Appeals and referred the matter back to the Federal Supreme Court of Justice (judgment of the First Division dated 31 May 2016, case no.: 1 BvR 1585/13). The previous judgments were held to have insufficiently taken into account the fundamental right of freedom of art. The Federal Supreme Court of Justice must now again decide in light of the standards set by the German Constitutional Court whether in the specific case freedom of art or the rights of the group Kraftwerk as producers of audio media which have constitutional protection as property has the greater weight. The Federal Supreme Court of Justice must also examine whether proceedings to request an initial ruling on a point of law before the European Court of Justice must be conducted in which the compatibility of the copyright directive of the European Union with the fundamental rights in the EU charter of human rights will be clarified.

Kraftwerk was advised in the proceedings before the German Constitutional Court, in addition to the constitutional lawyer Prof. Dr. Christian Winterhoff of the law firm GvW Graf von Westphalen, also by the specialists in copyright law Ulrike Hundt-Neumann and Dr. Hermann Lindhorst of SCHLARMANNvonGEYSO.

Key Contact

Dr Tim Nesemann
Lawyer
T +49 89 689077-0
t.nesemann@gvw.com

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