Kraftwerk Copyright Case: A Rare Win For Hip Hop Sampling
June 2, 2016 (Mimesis Law) — Another week, another high-profile copyright infringement case in the music industry, and I’m not even referring to the heat faced by Skrillex and Justin Bieber over their alleged infringement in “Sorry”. I’m talking about Kraftwerk, who lost its case before the First Senate of the Federal Constitutional Court of Germany this week, that is proving to be quite the landmark case.
Ralf Hütter of Kraftwerk sued hip-hop producer Moses Pelham over the use of a two-second drum loop, which Pelham allegedly took from Kraftwerk’s 1977 hit Metal on Metal, reworked and used throughout a 1997 track called Nur Mir (Only Me) performed by rapper Sabrina Setlur. I had to speed up (x1.5) the Nur Mir track to really start hearing the similarities.
Since the release of Nu Mir in 1997, Hütter has been actively disputing Pelham’s right to use the drum loop. In 2012 Hütter was successful at the German Federal Court of Justice (Bundesgerichtshof), which found in his favour, granting damages and injunctive relief, on the ground that the drum loop was copied and re-used, as opposed to being re-performed, which, if it had, may have fallen under a fair use exception.
Pelham and Setlur subsequently appealed to the Federal Constitutional Court in Karlsruhe (the highest court in Germany), claiming that the court’s decision was a violation of their artistic freedom and that sampling, which entails using existing audio snippets in creating new music, is fundamental to hip-hop generally. The Constitutional Court therefore had to decide on the degree to which artists can rely on their right to artistic freedom when faced with copyright infringement by way of sampling.
The Constitutional Court invalidated the lower court decision and found in favour of the ‘freedom to sample’, stating that legal protection of musical works is not aimed at securing “income from licensing of the re-use of samples in other musical works, but instead the protection against being harmed economically by piracy.” The Court held that Kraftwerk only suffered a minor interference of its rights and had not been harmed economically in this case as Nur Mir did not compete with Metal on Metal. Further, the Court held that “the process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner”, making special mention of the prevalence of sampling in hip-hop, and that such defining characteristics of a music genre should not be ignored. In this light, the German Constitution “does not require the protection of small and tiny (sound) elements by a copyright-related right, which in the course of time could further complicate or even render impossible the use of existing cultural assets.” Therefore Pelham had created an autonomous work, and had not infringed Kraftwerk’s earlier track.
The case has been sent back to the Bundesgerichtshof to be assessed for a second time. The Constitutional Court requested that the Bundesgerichtshof consider the protection of artistic freedom in light of EU law, specifically the Copyright Directive and that there is potential for this matter to be referred to the CJEU.
At the end of the day, the result has been very practical, with some welcoming the court’s common sense approach. Music by its nature tends towards art and not the precision of the sciences, or perhaps the law. To have a judgment acknowledge music for art’s sake, and not laser (legal) precision, certainly has an element of common sense, and comes at a convenient time of wider reform within the EU copyright regime.