## Facts

- Ralf Hütter and Florian Schneider‑Esleben produced the 1977 phonogram containing the song *Metall auf Metall*.
- In 1997, Pelham GmbH, Moses Pelham, and Martin Haas produced the song *Nur mir*, incorporating a roughly two‑second rhythm sequence taken from *Metall auf Metall* as a repeated loop.
- The sample was used without authorization from the phonogram producers.
- Long-running litigation in Germany led the Bundesgerichtshof to refer questions to the Court of Justice of the European Union (CJEU) for interpretation of EU copyright directives.
- The reference raised the scope of phonogram producers’ reproduction and distribution rights, the applicability of the EU quotation exception, and the role of artistic freedom under the EU Charter.

## Issues

1. Whether taking a very short sound fragment from a phonogram and incorporating it into another phonogram constitutes “reproduction in part” under Directive 2001/29/EC Article 2(c).
2. Whether a sample modified so it is no longer recognizable to the ear falls outside Article 2(c).
3. Whether the quotation exception in Directive 2001/29/EC Article 5(3)(d) can justify sampling.
4. Whether Member States may rely on fundamental rights (including artistic freedom) or national “free use” doctrines to permit sampling beyond the exceptions listed in Directive 2001/29/EC Article 5.
5. How Directive 2006/115/EC’s distribution right applies to unauthorized marketing of copies of phonograms.

## Decision

- The CJEU held that taking a sound sample from a phonogram and using it in another phonogram is, in principle, a reproduction “in part” under Article 2(c) when the sample remains recognizable to the ear.
- The CJEU held that use of a sample in a modified form unrecognizable to the ear does not constitute a reproduction under Article 2(c).
- The CJEU interpreted the quotation exception narrowly: it may apply to phonograms only where the use aims to enter into dialogue with the quoted work (e.g., illustration, critique, or comparison) and, as a rule, identifies the source and author unless impossible.
- The CJEU held that the list of exceptions and limitations in Article 5 is exhaustive; Member States may not maintain or introduce broader national “free use” rules that allow unlicensed uses outside Article 5.
- The CJEU clarified that the distribution right concerns placing copies on the market; mere availability for listening without transfer of a copy is not distribution.

## Legal Principles

- A recognizable sample taken from a phonogram and incorporated into another phonogram constitutes reproduction “in part,” regardless of brevity, and requires authorization absent an applicable EU exception.
- If a sample is modified so that it is unrecognizable to the ear in the new phonogram, the use falls outside the reproduction right in Directive 2001/29/EC Article 2(c).
- The quotation exception requires a quotation purpose (interaction with the quoted work), use consistent with fair practice, no more than necessary for the purpose, lawful availability of the quoted material, and source/author identification as a general rule.
- Fundamental rights, including artistic freedom, inform interpretation and application of harmonized EU rights and exceptions, but cannot justify additional national exceptions beyond the Directive’s enumerated list.
- Distribution under Directive 2006/115/EC targets marketing or placing copies on the market; it is distinct from rights implicated by access without transfer of ownership.

## Conclusion

The CJEU ruled that recognizable music sampling implicates phonogram producers’ reproduction rights and generally requires authorization, while transformed, unrecognizable sampling does not. It also limited reliance on the quotation exception and barred Member States from using national “free use” doctrines or constitutional balancing to expand exceptions beyond the exhaustive list set by EU law.


Pelham GmbH & Others v. Hütter & Schneider-Esleben, Case C-476/17 (C.J.E.U. 2019)