Sound sampling under Dutch law: when is a sample infringing?

Under Dutch law, a sample infringes as soon as a fragment of an existing recording is reproduced in a form that the average listener can still recognise, however short that fragment is. The main exception: if the fragment has been altered beyond recognition, or if the use qualifies as pastiche on the strict conditions set by the Court of Justice of the European Union, no permission is needed.

Which rights can a sample infringe?

A single sample can infringe up to three separate rights at once: the copyright in the composition and lyrics, the performer right in the recorded performance, and the right of the phonogram producer in the recording itself. Each of those rights may be held by a different party.

The composition and the lyrics are protected by copyright under the Dutch Copyright Act (Auteurswet), provided they are the author’s own intellectual creation. The performance of the musicians and singers is protected by the performer right in article 2 of the Neighbouring Rights Act (Wet op de naburige rechten, WNR). The recording as such is protected by the right of the phonogram producer in article 6 WNR. Article 1 WNR defines both the performer and the phonogram producer: the person or company that first records the sounds.

Who holds those rights in practice?

In most commercial releases, the rights are spread over several parties. The composition rights usually sit with the writers and their publisher, the master rights with the record label, and the performer rights with the artists, who often assign them to the label by contract. Only where an artist writes, performs, records and releases entirely under her own management are all rights held by one person, and clearance is then a single conversation. In every other case, a sample cleared with the label alone still infringes the composition rights.

How long does protection last?

For most recordings made since the 1970s, protection is still running on every level. Copyright lasts until seventy years after the death of the last surviving author. Under article 12 WNR, the right of the phonogram producer lasts seventy years from lawful publication of the recording, and the same seventy years applies to a performer whose performance appears on a lawfully published phonogram. That longer term follows from the EU term extension of 2011.

When is a sample a reproduction?

A sample is a reproduction whenever a fragment of a phonogram is copied into a new recording, regardless of its length, unless it has been modified so much that the ear can no longer recognise it. Article 2 of the Copyright Directive (2001/29/EC) gives the author, the performer and the phonogram producer an exclusive right of reproduction. The Netherlands implemented that right in article 1 of the Auteurswet and in articles 2 and 6 WNR.

Article 13 of the Auteurswet adds that reproduction covers more than a one-to-one copy. Any full or partial adaptation or imitation in an altered form counts as well. For a long time, however, it was unclear where that left a two-second drum break.

What did the Court of Justice decide in Pelham I?

The Court of Justice answered that question in Pelham, on a reference from the German Federal Court of Justice (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, whatever the length of the fragment. A sample of one second can therefore infringe. Second, if a user takes a fragment and includes it in a new work in a form that is unrecognisable to the ear, that use is not a reproduction of the phonogram, and no permission is required.

Whose ear decides?

The average music listener decides. After the case returned to Germany, the Bundesgerichtshof confirmed this in Metall auf Metall IV (30 April 2020). These decisions concern the right of the phonogram producer. The same criteria are generally applied to sampling that touches the performer right. The copyright in the composition sets a higher threshold, because the fragment itself must be an own intellectual creation. In a sampling dispute, a claim based on the producer right is therefore usually the strongest of the three.

Can you rely on pastiche or another exception?

Sometimes, but the conditions are strict. Article 5 of the Copyright Directive allows member states to create exceptions. 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, on which the Court of Justice ruled in Pelham II on 14 April 2026 (C-590/23).

What does pastiche require after Pelham II?

The Court held that pastiche is an autonomous concept of EU law, but not a general licence for creative reuse. In short, the new work must:

• evoke one or more existing works, while being noticeably different from them;
• use characteristic elements of those works, which may be done by sampling; and
• enter into an artistic or creative dialogue with the original that is recognisable as such, for example through overt stylistic imitation, a tribute, or humorous or critical engagement.

Concealed imitation and plagiarism fall outside the exception. It is not necessary to prove that the user intended a dialogue; what counts is whether someone familiar with the original would recognise it. Sampling that simply reuses an attractive fragment, without any recognisable dialogue with the source, therefore remains an infringement.

Does the quotation exception help?

Rarely in music production. Under article 15a of the Auteurswet, a quotation is only allowed from a work that has been lawfully made public, in a review, critique or similar context, with the source and author acknowledged, and to an extent justified by the purpose. Ordinary commercial productions seldom meet those conditions. Clearance remains the reliable route.

How do you clear a sample?

You clear a sample by obtaining permission from every rightholder whose material you use, 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. For the recorded performance it is the performers or whoever holds their rights by assignment. Collective management organisations administer parts of the repertoire. A sample licence is still normally negotiated directly, because it involves an adaptation rather than a plain reproduction of a whole work.

What should the licence say?

Put the licence in writing and settle at least these points: the exact fragment and the versions in which it may be used, the territory and the term, the remuneration (a fixed buy-out, a share of the publishing or a royalty on the master), and the credit. Mind the form. Article 2(3) of the Auteurswet requires an exclusive licence to be agreed in writing, and a transfer of copyright requires a deed (akte). An email approving the use is not a transfer, and as a licence it is weak evidence of what was agreed.

Clearance should also cover the release channels. Distribution platforms and streaming services pass on takedown notices. A dispute reported through a rights management system can freeze the revenue on a track long before any court is involved.

What can you do if your recording has been sampled without permission?

Secure the evidence first, then send a cease and desist letter; if that does not work, go to court. Record the release in question, its release date, the fragment used, its position in both recordings, and why it remains recognisable to an average listener. Where the fragment has been processed, an expert comparison of the audio is often decisive. Before acting, ask three questions: did the user obtain permission from any of the rightholders, is the fragment still recognisable to the average listener, and is there a plausible pastiche or other exception argument?

Start with a cease and desist letter

The usual first step is a letter that sets out your rights, the infringement and a deadline, and reserves the right to claim damages. It is quick and it does not close off any later option. It can also lead 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 intellectual property disputes explains what such a letter should contain.

Which claims can you bring in court?

If the letter does not resolve matters, proceedings follow. Interim relief proceedings (kort geding) before the preliminary relief judge (voorzieningenrechter) are the standard route when the infringement must stop quickly. In intellectual property cases the court can also grant an order without hearing the other side (ex parte), and an evidentiary seizure is available in appropriate cases. On the merits, you can claim:

• a declaration that the other party acted unlawfully, under article 3:302 of the Dutch Civil Code (BW);
• an injunction, backed by a penalty payment (dwangsom);
• damages under article 27 of the Auteurswet and article 16 WNR; or
• as an alternative to damages, surrender of the profit made with the infringement, under article 27a of the Auteurswet and article 16 WNR.

An important practical point: under article 1019h of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), the successful party in an intellectual property case can recover its reasonable and proportionate legal costs, rather than only the modest standard scale. That changes the economics of enforcement on both sides.

How long can you wait?

Not indefinitely. Under article 3:310 BW, a claim for damages becomes time-barred five years after the day on which you became aware of both the damage and the person liable. Delay also weakens an application for interim relief, because urgency is one of its requirements.

What should you check as the rightholder?

Under Article 3:310 BW you have five years to claim damages, but interim relief requires urgency, so act within weeks of discovering the sample.

• Which of the three rights do you actually hold: composition, performance or master recording?
• Is the fragment still recognisable to the average listener, and can you show where it appears in both recordings?
• Did the user clear the sample with another rightholder, such as the publisher or the label?
• Is there a plausible pastiche argument under Article 18b of the Auteurswet after Pelham II?
• Have you recorded the release date, the platforms and the income the track generates?

What should you check as the producer who uses a sample?

Do not ignore a claim. An unanswered claim is usually followed by takedown notices at the distributor and by interim proceedings, with the other side’s legal costs at risk under Article 1019h Rv.

• Does the fragment come from the original recording, or did musicians re-play it? A re-play touches the composition rights, but not the producer right.
• Has the processing made the fragment unrecognisable to the average listener?
• Do you have permission from the label, the publisher and the performers, before release?
• Is an exclusive licence in writing, and is any transfer made by deed (akte), as Article 2(3) of the Auteurswet requires?
• If you rely on pastiche, does your track enter into a recognisable dialogue with the original?

What can we do for you with sound sampling?

Our media and entertainment lawyers and IT lawyers advise artists, producers, labels and publishers in Dutch and in English; our guide to intellectual property law in the Netherlands sets out the wider framework.

• We assess whether a fragment infringes the producer, performer or composition rights.
• We clear samples and draft the licence, including the fragment, territory, term, remuneration and credit.
• We send or answer a cease and desist letter with a clear deadline.
• We apply for interim relief (kort geding) or an evidentiary seizure and conduct proceedings on the merits.
• We calculate the damages or the profit to be surrendered under Articles 27 and 27a of the Auteurswet.

Summary

• A sample of any length infringes the producer right if the average listener can still recognise it (Pelham, C-476/17).
• Up to three rights may be involved: composition, performance and recording. Each needs separate clearance.
• Pastiche only applies when the new work enters into a recognisable artistic dialogue with the original (Pelham II, C-590/23).
• Clear samples before release, with an exclusive licence in writing and a deed for any transfer.
• Rightholders can claim an injunction, damages or profits, and in IP cases the losing party can be ordered to pay the other side’s reasonable and proportionate legal costs.

Frequently asked questions