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.