Unauthorised sound sampling is an infringement under Dutch law whenever a fragment of an existing recording is reproduced in a form that remains recognisable to the average listener, however short the fragment is. Three separate rights can be involved: the copyright in the composition and the lyrics, the performer right in the recorded performance, and the right of the phonogram producer in the recording itself. Permission from each rightholder is needed unless the sample has been altered beyond recognition or an exception such as pastiche applies.
This article sets out which rights a sample can touch, where the line between a permitted and an infringing sample now runs after the two Pelham judgments of the Court of Justice of the European Union, how clearance works in practice, and what a rightholder can do when a sample has been used without permission.
Which rights a sample can infringe
A recorded song is a stack of rights, and sampling can touch all of them at once. The composition and the lyrics are protected by copyright under the Auteurswet, provided they qualify as an own intellectual creation of the author. The performance of the musicians and singers is protected by the performer right in article 2 of the Wet op de naburige rechten (WNR), and the recording as such is protected by the right of the phonogram producer in article 6 WNR. Article 1 WNR defines the performer and, under d, the phonogram producer as the party that makes the first recording or has it made and bears the financial risk.
Those layers rarely sit in one hand. In a typical commercial release, the composition rights are with the writers and their publisher, the master rights with the record label, and the performer rights with the artists, often assigned to the label by contract. Where an artist writes, performs, records and releases entirely under her own management, the rights are united in one person and clearance is a single conversation. In every other case, a sample cleared with the label alone is still an infringement of the composition rights.
Duration matters too. Copyright runs until seventy years after the death of the last surviving author. The neighbouring right of the performer and of the phonogram producer runs for seventy years from lawful publication of the recording, after the term extension of 2011. A track from the 1970s is therefore in most cases still fully protected on both counts.
When is a sample a reproduction
Article 2 of the Copyright Directive (2001/29/EC) gives the author, the performer and the phonogram producer an exclusive right of reproduction, implemented in the Netherlands in article 1 of the Auteurswet and in articles 2 and 6 WNR. Article 13 of the Auteurswet makes clear that reproduction covers more than a one-to-one copy: any complete or partial adaptation or imitation in an altered form counts. For a long time it was unclear where that left a two-second drum break.
The Court of Justice answered part of that question in Pelham, on a reference from the German Bundesgerichtshof (CJEU 29 July 2019, C-476/17). Two findings decide most cases. First, taking a sound fragment from a phonogram and including it in another recording is a reproduction of that phonogram irrespective of the length of the fragment, so a sample of one second can infringe. Second, where a user takes a fragment and includes it in a new work in a modified form that is unrecognisable to the ear, that use is not a reproduction of the phonogram, and no permission is required.
After the case returned to Germany, the Bundesgerichtshof specified in Metall auf Metall IV (30 April 2020) whose ear is decisive: that of the average music listener. Although these decisions concern the right of the phonogram producer, the same criteria are generally considered to apply to sampling that touches the performer right, and the copyright in the composition sets a higher threshold still, because the fragment taken must itself qualify as an own intellectual creation. That is why, in a sampling dispute, a claim based on the producer right is usually the strongest of the three.
Pastiche and the other exceptions after Pelham II
Article 5 of the Copyright Directive allows member states to provide exceptions, and the Netherlands has done so for quotation in article 15a of the Auteurswet and for caricature, parody and pastiche in article 18b. The pastiche exception was the subject of the second chapter of the same dispute, and the Court of Justice ruled on it in Pelham II on 14 April 2026 (C-590/23).
The Court held that pastiche is an autonomous concept of Union law but not a general licence for creative appropriation. The use must be openly recognisable as such, so hidden imitation and plagiarism fall outside it; characteristic elements of the earlier work must be recognisable in the new one; the new work must differ noticeably from the original; and there must be an artistic or creative dialogue with the source that is objectively recognisable to someone familiar with it. The subjective intention of the sampler is not what counts. Sampling that simply reuses an attractive fragment, without any recognisable dialogue with the original, is therefore still an infringement.
The quotation exception is narrower than it looks in this context: it requires that the work quoted has been lawfully made public, that the source and the author are acknowledged, and that the quotation is proportionate to the purpose. In ordinary commercial music production these conditions are seldom met. Clearance remains the reliable route.
Clearance: whose permission you need, and in what form
Clearing a sample means obtaining permission from every rightholder whose material is used, before release. For the master recording that is the phonogram producer, in practice the record label; for the composition and lyrics it is the writers or their publisher; and for the recorded performance it is the performers or whoever holds their rights by assignment. Collective management organisations administer parts of the repertoire, but a sample licence is normally negotiated directly, because it involves an adaptation rather than a straightforward reproduction of a whole work.
Put the licence in writing and settle four points: the exact fragment and the versions it may be used in, the territory and the term, the remuneration, whether that is a fixed buy-out, a share of the publishing or a royalty on the master, and the credit. Where rights are not merely licensed but transferred, Dutch law requires a deed: article 2 of the Auteurswet provides that a transfer, and an exclusive licence, must be effected by a signed written instrument. An email approving the use is not a transfer, and it is a weak licence.
Note that clearance also has to cover the release channels. Distribution platforms and streaming services pass takedown notices through, and a dispute reported by a rights management system can freeze revenue on a track long before any court is involved.
What to do if your recording has been sampled without permission
Start by establishing the facts and preserving them: the release in question, the release date, the fragment used, its position in both recordings, and a description of why it remains recognisable to an average listener. Where the fragment has been processed, an expert comparison of the audio is often decisive. Ask three questions before acting: did the user obtain permission from any of the rightholders, is the fragment still recognisable to the average listener, and is there a plausible case that pastiche or another exception applies.
The usual first step is a cease and desist letter setting out the rights, the infringement and a deadline, and reserving the right to claim damages. It is quick, it interrupts nothing you may need later, and in a substantial proportion of cases it leads to a negotiated clearance after the fact, with a credit and a fee or royalty share. Our article on the cease and desist letter in case of infringement of intellectual property rights sets out what such a letter should contain.
If that does not resolve matters, proceedings follow. Interim relief proceedings before the voorzieningenrechter are the standard route where the infringement must stop quickly; in intellectual property cases the court can also grant an ex parte order without hearing the other side, and evidentiary seizure is available in appropriate cases. On the merits, a rightholder can claim a declaration that the other party acted unlawfully under article 3:302 BW, an injunction with a penalty payment, damages under article 27 of the Auteurswet and article 16 WNR, and, as an alternative to damages, the surrender of the profit made with the infringement under article 27a of the Auteurswet and article 16 paragraph 2 WNR. A significant practical point is that article 1019h of the Wetboek van Burgerlijke Rechtsvordering allows the successful party in an intellectual property case to recover its reasonable and proportionate legal costs in full, rather than the modest standard scale, which changes the economics of enforcement on both sides.
Do not wait indefinitely. A claim for damages becomes time-barred five years after the day on which the rightholder became aware of both the damage and the person liable, and delay also weakens an application for interim relief, because urgency is one of its requirements.
If you are the one accused of sampling
The mirror image is worth setting out, because producers regularly receive a claim over a fragment they considered unrecognisable. Check first whether the fragment is genuinely a reproduction of the original recording, as opposed to a re-play of the same notes by other musicians, which touches the composition rights but not the producer right. Check next whether the processing has made the fragment unrecognisable to the average listener, and only then whether pastiche can be argued on the strict conditions the Court of Justice has now set out. Beyond that, the sensible questions are commercial: what a licence would have cost before release, and what the exposure is if the track continues to earn while the dispute runs.
Silence is the worst response. An unanswered claim tends to be followed by takedown notices at the distributor and by interim proceedings, and by then the costs at risk include the other side full legal costs under article 1019h Rv.
How Law and More can help
Law and More advises artists, producers, labels and publishers on sampling: assessing whether a fragment infringes, clearing samples and drafting the licence, sending or answering a cease and desist letter, and conducting proceedings before the Dutch courts. Our media and entertainment lawyers work in Dutch and in English, and our guide to intellectual property law in the Netherlands gives the wider framework. If you would like a sample assessed or a claim answered, please contact us.
