A circuitous and protracted copyright infringement case first brought by German electronic-music pioneers Kraftwerk in 2004 has finally been settled — and not in the pioneering electronic group’s favor.
The European Court of Justice, the principal judicial authority of the E.U., decided on April 14 that an unapproved, two-second sample of Kraftwerk’s 1977 song “Metall auf Metall” used by producer Moses Pelham in the 1997 single “Nur mir” was legal.
The ECJ found that the producers’ use of Kraftwerk’s percussion was within the provisions of “pastiche,” which, due to a 2022 ruling, allows for the unauthorized use of creative work if that use is noticeably different from the original and is in artistic dialogue with the original. (The U.S. has similar, but roomier, laws around “fair use” that allow for, among other things, creators to use copyrighted works without permission if they’re engaging with it critically or comedically.)
“The European Court of Justice has helped to clarify the urgently needed definition of the concept of pastiche, thereby seeking to strike a balance between artistic freedom and the protection of intellectual property,” says René Houareau, Managing Director Legal & Political Affairs for Germany’s music industry association BVMI, in a statement to Variety. “This is also significant because the exception introduced in Germany in 2021 has so far been associated with considerable legal uncertainty.”
The path to the decision has been a long and complex one, with 22 years spent circumnavigating the European justice system across appeals and remandments that ping-ponged between two regional German courts, the German Federal Court of Justice, the German Federal Constitutional Court and, now, the ECJ.
The pastiche provision “does not have a catch-all nature,” the Court wrote in its decision, “but covers creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them.”
In other words, the ECJ has carved out a comfortable, but not infinite, legal space for sampling and other creative interpolations in such contexts.
“The fact remains that sampling is only possible within narrow limits,” Kraftwerk representative Hermann Lindhorst told Süddeutsche Zeitung.
The case will now head to the German Federal Court of Justice for final reassessment under the new ECJ guidelines.
Leave a Reply