“Metal on metal”, judgement on judgement: The copyright dispute between Kraftwerk and Moses Pelham

22 years, 10 judgements, all instances: Of all things, a two-second excerpt of the song “Metall auf Metall” of the band Kraftwerk triggered a long-running legal dispute that continues to this day and has significantly changed copyright law in Germany. What is it exactly about?

In the beginning, there is a so-called sample of the song “Metall auf Metall” by the band Kraftwerk. The hip-hop producer Moses Pelham took a two-second excerpt of the song, the so-called sample, and incorporated it into his song “Nur mir” (Only Me), but without the band’s consent. Kraftwerk did not like this at all – and sued Pelham for injunctive relief and damages for infringement of record producer and copyright.

Going through the instances

The view that this was indeed an infringement of rights, i.e. that only Kraftwerk was allowed to distribute these two seconds of music, was endorsed by the Hamburg Regional Court and Higher Regional Court in 2004, 2006 and 2008, and finally by the Federal Court of Justice. Sampling, the term used in technical parlance for the re-use of sound tracks from existing pieces of music, was thus completely illegal according to the courts.

However: in its 2008 judgement, the Federal Subreme Court also addressed §24 German Copyright Act (UrhG) a.F.: Free Use. This regulation described that artists may use copyrighted works without asking the author for consent. However, only by way of suggestion and if the new work is sufficiently different from the old one.

The legal dispute between Pelham and Kraftwerk would later bring this regulation down. However, the Federal Court of Justice and the Higher Regional Court of Hamburg first established that Pelham could also have replayed the sequence – so that the sampling would not have been needed at all and § 24 UrhG a.F. could not apply in the present case

The tide turns for Pelham and “Nur mir” (Only me)

Pelham did not put up with the Federal Supreme Court decision either and went before the Federal Constitutional Court. There, he was proven right: The Federal Supreme Court had interpreted §24 German Copyright Act (UrhG) a.F. too narrowly, and Pelham’s artistic freedom had been unjustifiably interfered with. In addition, provisions of European Union law had to be taken into account. This is where the matter becomes more complicated: the European Court of Justice (ECJ) then informed the court, when asked, that free use according to § 24 German Copyright Act (UrhG) a.F. was not compatible with the InfoSoc Directive, which entered into force on 22 December 2002. Rather, in the case of distribution by Pelham after that date, there was an infringement of rights. Was this actually the case during the period in question? The Hamburg Higher Regional Court examined the question and answered in the affirmative.

An end in sight?

Actually, the proceedings could have ended here – Pelham would not have infringed Kraftwerk’s rights before 22 December 2002, but after that date they did. But: in its decision this year, the Hamburg Higher Regional Court allowed an appeal: since 7 June 2021, a so-called pastiche barrier has been in force in Germany with § 51a German Copyright Act. The still unclear definition of pastiche refers to the imitation of one work in another, but in an artistic or even supportive or appreciative manner. This opens up a new time period, which must also be taken into account, for which a possible infringement of rights – which the Hamburg Higher Regional Court does not currently see – could exist.

However, since the interpretation of the pastiche term under Union law in particular is not yet clear, the Higher Regional Court has allowed an appeal – the members of the band around founding member Ralf Hütter only accepted it on 13 May.

It remains exciting in a case that has always raised very fundamental questions about the relationship between artistic freedom and copyright protection and promises to continue to do so.