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German court says uncleared Kraftwerk sample not infringement because of “artistic freedom”

By | Published on Wednesday 1 June 2016


It’s a classic when it comes to copyright dilemmas, how many beats can you sample before you’re infringing the original beat maker’s intellectual property rights? Some would say any sampling at all – however slight – requires the permission of whoever controls the original work, while others think there should be a tiny little bit of flexibility.

In among “the others” you can now include the German Constitutional Court, which has bounced back a long-running Kraftwerk sample case to the lower court that previously said a two-second sample of the legendary electro-pop band’s track ‘Metal On Metal’, used without permission, did constitute copyright infringement.

As previously reported, Kraftwerk’s Ralf Hutter sued Moses Pelham way back in the early 2000s over a 1990s track that the latter had made with the rapper Sabrina Setlur called ‘Nur Mir’, which included the tiny ‘Metal On Metal’ sample on a loop. The case bounced around the German courts for years, with both sides winning at different points in the proceedings.

While it’s accepted that Pelham used the sample without permission, what has been of much debate is whether or not that constitutes copyright infringement under German law. In 2012, one key debate that led to a court siding with Hutter was that Pelham could have relatively easily replicated the sound he sampled – either by using a 1996 Akai Sampler or simply crashing some metal onto metal – and therefore the producer was just taking a short cut. This, it was argued, was sufficient to push the sample into the realm of infringement.

What about Pelham and Setlur’s “artistic freedom” though? Won’t somebody consider Pelham and Setlur’s “artistic freedom”? Oh, the German Constitutional Court has done just that. It’s told Germany’s Federal Court Of Justice, which ruled in Hutter’s favour in 2012, that it must reconsider the case, with the constitutional judges reckoning that the negative impact on Kraftwerk caused by the uncleared sample was not sufficient to outweigh the samplers’ right to artistic freedom. Who’d have thought it possible?

According to the BBC, the Constitutional Court mused that, if Pelham’s sample was deemed copyright infringement, that would “practically exclude the creation of pieces of music in a particular style”. Presumably because samples are licensed on a case-by-case basis, rather than under any kind of blanket licence, meaning the owner of the original work can always say no – or demand unreasonable rates – screwing up the sampler’s artistic vision. Just ask Car Seat Headrest.

Though, of course, sampling cases are always interesting in that they pitch creators against creators. And German record industry trade group BVMI has already expressed concern about the ruling, arguing that an “artistic freedom trumps everything” viewpoint sets a dangerous precedent and – says BVMI’s Florian Druecke – “would be grist to the mill for those who claim that everything should be allowed on the internet”.

Though there are supporters for Pelham too within the German music community who, like the German Constitutional Court, reckon there should be a tiny little bit of flexibility when it comes to the samples. We now await to see what happens when this case returns to the Federal Court Of Justice.