Kraftwerk copyright battle rages on as CJEU delivers landmark ruling in sampling case

A landmark ruling from the Court of Justice of the EU has delivered a blow to Kraftwerk in the group's decades-long copyright battle with German producer Moses Pelham over a two-second sample from the group's 1977 song Metall auf Metall.

Pelham sampled, time-stretched and looped a brief fragment of drums from Metall auf Metall on Sabrina Setlur's 1997 single Nur Mir without permission, prompting Kraftwerk to take legal action.

Bringing a suit against Pelham for copyright infringement in 1999, Kraftwerk's Ralf Hutter and Florian Schneider were initially successful, but the ruling was later overturned on appeal. The case has since bounced between various national and European courts, becoming the longest-running copyright dispute in German history.

A central issue in the protracted case concerns the EU Copyright Directive, which provides an exception for works of "caricature, parody and pastiche" in cases of copyright infringement. As that exception originated in EU law, Germany's Federal Court of Justice returned the Kraftwerk case to the CJEU to "clarify the scope" of the concept of pastiche.

On Tuesday, April 14th, the CJEU delivered a ruling that states the exception can apply to creations "which evoke one or more existing works, while being noticeably different from them" and make use of "characteristic elements protected by copyright".

That usage must constitute an engagement in an "artistic or creative dialogue that is recognisable as such", and the dialogue can take a number of different forms, including "overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them".

The CJEU has not ruled on whether this exception can be applied to Pelham's use of the Kraftwerk sample, and the case has now been returned to Germany's Federal Court of Justice to make that determination – but Pelham now has a stronger legal argument under the CJEU's broad definition of pastiche.

The CJEU's ruling could have wide-ranging implications for artists that employ sampling in their creative process. According to law firm Pinsent Masons, the CJEU's clarification "opens the door to musical artists and samplers to use material without prior permission if it represents a recognisable reference to the original".