Kraftwerk Gains Leverage In Epic Copyright Battle Over a 2-Second Sample

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Ralf Hütter, Henning Schmitz, Fritz Hilpert, and Stefan Pfaffe of the band Kraftwerk perform during the Kraftwerk - Retrospective 1 2 3 4 5 6 7 8, Autobahn (1974) at The Museum of Modern Art on April 10, 2012 in New York City.  

Kraftwerk may have been passed over for induction in the Rock and Roll Hall of Fame in Cleveland, but the German group may fare better in court in Luxembourg. On Wednesday Advocate General Maciej Szpunar advised the European Court of Justice, which is deciding a copyright case that involves Kraftwerk's "Metall of Metall," that even limited sampling of a recording can constitute copyright infringement. Advocate General opinions are not binding, but they're watched closely, since they often predict the way the high court of Europe will decide cases.

The case involves a two-second sample from "Metall auf Metall," which the producers Moses Pelham and Martin Haas used as a continuous background loop in the 1997 song "Nur Mir." ("Metall auf Metall," known in the English-speaking world as "Metal On Metal," follows "Trans-Europe Express on the album of the same name and has an iconic klangy rhythm.) Although the sample consists of just two seconds of the original song, it's recognizable and important in "Nur Mir," which is performed by the singer Sabrina Setlur.

Fittingly for Kraftwerk, this case -- formally "Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben" -- is both important and complicated. The case has been winding its way through the German legal system since 1999, and in 2012 the German Federal Court of Justice finally ruled that the use of Kraftwerk's recording in "Nur Mir" constituted copyright infringement. But that song's producers appealed to the German Federal Constitutional Court, which in May 2016 held that copyright law needed to be balanced with artistic freedom and referred the case back to the German Federal Court of Justice -- which, in turn, then referred the case to the European Court of Justice. Hütter himself showed up for the German Federal Constitutional Court hearing, where the sample was played.   

Unlike most sampling cases, this one involves a recording, not a composition. (Kraftwerk owns the recording of "Metall auf Metall.) Like all countries, Germany provides for exceptions to copyright, which best translate as "free use," that allow creators to incorporate "quotations" of copyrighted works into new ones without a license in some circumstances. In some higher court proceedings, Pelham's legal team argued that the provision in German law that allows quotation -- and, they argue, sampling -- is more akin to a right than an exception to copyright. Although the German Federal Constitutional Court agreed that "artistic freedom" needed to be considered, that didn't set a precedent that unauthorized sampling is necessarily legal in all circumstances.

Some of the questions referred to the European Court of Justice involve details of European law, including whether the German concept of free use is compatible with EU law. But others get to the center of the debate around copyright and free expression. Generally, most countries' courts have held that quotation doesn't infringe copyright when a new work refers to the original one – in a book review, or even in a parody of a song. But what about when the new work has nothing to do with the original? Such questions have increased urgency in the digital age, and this is one of several important cases on the topic.

The Advocate General's opinion – which isn't binding – holds that a sample of a recording infringes copyright under normal circumstances; German "free use" may be incompatible with EU law; there are limits to copyright exceptions; and that the quotation exception may not apply in cases that involve recordings when the original work isn't referenced. Perhaps most important, the opinion says that the right of copyright owners to license or prohibit sampling doesn't contradict artistic freedom as enshrined in the Charter of Fundamental Rights of the European Union.

Although this particular case involves Kraftwerk, a European Court of Justice decision would set a precedent that would offer leverage to the labels and other owners of recordings that want to charge for samples. "It is pleasing to see that the Opinion is based on the principles of intellectual property and on the rights of phonogram producers specifically," said Dr. Florian Drücke, CEO of the BVMI, the trade group that represents the German recording business. "Particularly in a time where attempts to weaken exclusive rights are commonplace, the Opinion represents an important acknowledgement of the principles of existing copyright law."

The European Court of Justice generally issues rulings several weeks after the Advocate General issues an opinion.            

Although sampling made Kraftwerk important to the history of hip-hop -- Afrika Bambaataa famously incorporated elements of the group's "Trans-Europe Express" and "Numbers" into his groundbreaking hit "Planet Rock" -- the members of the group don't seem to care for it. They reached a settlement with Tommy Boy, Bambaataa's label, for "Planet Rock," and the time and resources they've put into this case suggest that more than money is at stake.

Whatever the court's decision, it will not resolve the dispute between Kraftwerk and the producers of "Nur Mir" -- just clarify the questions of law at the heart of the case.