The art of sampling after Pelham

The decision of the CJEU in the Pelham case offers the users of sound samples, in my opinion, a bit more leeway. When it regards sound samples in a modified form unrecognisable to the ear then reproduction from a neighbouring rights perspective is out of the question and prior consent of the phonogram producer is therefore not required. Recognisable sound samples that engage, in one way or the other, in a dialogue with the sampled work may fall under the sound quotation right.

Moreover, in general the CJEU considers that ‘sampling technique’ – as, for instance, common in the musical industry – is a form of artistic expression that enjoys protection in the context of the freedom of the arts in pursuance of article 13 of the European Charter. Sampling can thus, according to the highest European court, be qualified as an art form itself, and not, as argued earlier and elsewhere, as a form of ‘musical piracy’ or ‘theft’. After Pelham the term ‘klankjatten’ (‘snitching sounds’) used in Dutch copyright literature long ago is in need of recalibration. In my view, an important establishment for, in particular, the process of musical creation because musical sampling has, in terms of connotation, been pushed out from a legal perspective for decades.

Read the article here.