“Metall auf Metall”
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The application of standards specific to art required by Art. 5(3), first sentence, of the Constitution stipulates that the adoption of excerpts of copyrighted subject-matter must be recognised as means of artistic expression and design. If this freedom of development stands in opposition to an infringement of copyright or related rights that only minimally restricts the possibilities for exploitation, then the right holders’ interests in exploitation may have to give way to artistic freedom.
The protection of property cannot lead to making the use of equivalently duplicable samples of a phonogram generally dependent on authorisation by the phonogram producer, as this does not take due account of the artist’s creative process.
When monitoring the application of EU law by a non-constitutional court, the Federal Constitutional Court examines in particular whether that court has prevented impending violations of fundamental rights by a referral to the Court of Justice of the European Union and whether the inalienable minimum standard for fundamental rights laid down in the Constitution is observed.