An American’s perspective on Pelham v Hütter and the role of fundamental rights in sampling

Last month I had the privilege to travel to Chicago and discuss EU copyright issues with the enthusiastic JD and LLM students of Prof Graeme Dinwoodie at Chicago-Kent Law School. At some point, the discussion inevitably shifted to the copyright cases currently pending before the Court of Justice of the European Union (CJEU), including Pelham, C-476/17 (the Metall auf Metall case) and the question of lawfulness of unauthorized sampling. 

In his Opinion back in December [Katposts here and here], Advocate General (AG) Szpunar advised the CJEU to rule that unauthorized sampling may be considered infringing.

Now, Thomas Key, a JD student at Chicago-Kent Law School, provides an American perspective on this important case.

Here's what Thomas writes:

An American’s Perspective on Pelham v Hütter and the Role of Fundamental Rights in Sampling 

by Thomas Key

Mechanical Licensing

U.S. copyright law provides for compulsory mechanical licensing with regards to the reproduction and distribution of musical works; as a result, artists may produce cover versions of existing musical works without permission from the author. Rather, artists give notice to the copyright holder and pay predetermined or negotiated royalties as facilitated by a mechanical licensing collective. This mechanism ensures renumeration for copyright holders while providing a limited exception to their rights over the work; it also allows artists to more easily revive older musical works, promoting the proliferation of the arts. While this sort of exception is in tension with the author’s rights over their own intellectual creation, it may be more applicable to downstream artistic uses of phonograms protected by the related right of producers. 

Fundamental Rights of the Producer of a Phonogram

The AG in Pelham v Hütter described the distinction between copyrights and the related rights in phonograms on the basis of what the...