copyright
Sampling dispute over Kraftwerk Beat goes to the ECJ
Ralf Hütter (lr), Henning Schmitz, Fritz Hilpert and Falk Grieffenhagen from Kraftwerk on stage. photo
© Alberto Pezzali/Invision/AP/dpa
A legal dispute over a sequence of notes from the piece “Metall auf Metall” by the band Kraftwerk has been going through the courts for around two decades. Now there is an eleventh decision on this. But that is not a final line.
It’s about the limits of artistic freedom and Copyright: A more than two-decade-long legal dispute between electro-pop pioneers Kraftwerk and music producer Moses Pelham over a two-second sequence of sounds is once again headed to the European Court of Justice (ECJ).
The Federal Court of Justice (BGH) suspended the proceedings there on Thursday. The judges in Luxembourg must, among other things, decide on the question of what exactly is meant by a pastiche. This is still completely unclear, said the presiding judge Thomas Koch.
What is a pastiche?
Since the implementation of EU law into German law, the copyright law states: “The reproduction, distribution and public reproduction of a published work for the purpose of caricature, parody and pastiche is permitted.” While caricature and parody are well-known terms in German, pastiche is rarely used. In general, the term means the imitations of artists’ style or ideas.
However, it is questionable, for example, whether restrictive criteria such as the requirement of humor, style imitation or homage apply, explained Koch. In French law, for example, humorous intent plays a role. A second question concerns whether one must be able to determine that someone intentionally intended to create a pastiche – or whether “recognizability of the character as a pastiche” is sufficient.
The background to the dispute is a case that an entire industry is pursuing because of the fundamental questions about the relationship between artistic freedom and copyright protection: Pelham had a rhythm from the Kraftwerk piece “Metall auf Metall” from 1977 – essentially “Bang-dänge-däng -däng” – 20 years later, slightly slowed down and placed in an endless loop under the song “Nur mir” with the rapper Sabrina Setlur. Such a musical interpretation in a new context is called sampling. It is common in rap and hip-hop.
Beat in a sound archive
However, Pelham, now 52, did not ask for permission. The Frankfurt native came across the beat in a sound archive and was fascinated by the “musical coldness,” as he once said. Kraftwerk co-founder Ralf Hütter – now 77 years old and recently visiting Karlsruhe, of all places, for the group’s only concert in Germany this year – felt robbed and complained.
The procedure went through the courts: the BGH alone has now announced its fifth decision. In addition to the ECJ, the Federal Constitutional Court has also been involved. “This is about fundamental things,” Pelham’s representative Matthias Siegmann said at the hearing at the beginning of June. Therefore time doesn’t matter.
Most recently, the Hamburg Higher Regional Court (OLG) ruled in favor of the plaintiffs, among other things, in that they could claim damages for a period of around 18.5 years. For the period after June 7, 2021 – when the implementation of EU legislation into German law came into force – the court dismissed the lawsuit. It was assumed that the reproduction of the sound sequence from “Metal on Metal” and its transfer into an independent new work by means of sampling was now permissible as a pastiche. However, the OLG allowed the appeal for this period, so it now went to the BGH.
According to Koch, the Karlsruhe judges also support a relatively broad interpretation of the term pastiche. Otherwise, artistic freedom could not be protected if works were not caricatures or parodies, explained the presiding judge. “It’s about much more than just the copyright approval of sampling.” There is no deadline by which the ECJ must comment on this. Only when the answers are available will the BGH continue to negotiate.