Top German court refers Kraftwerk 'pastiche' case to ECJ
September 14, 2023
A decades-old dispute over a two-second drum sample from German electropop band Kraftwerk has been sent back to Europe's top court. The case raises fundamental questions about copyright, plagiarism and artistic freedom.
There have been well over eight rounds in Kraftwerk's legal dispute over the sampling of a drum sequenceImage: Henning Kaiser/dpa/picture alliance
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The drum beat itself lasts about two seconds, but the legal dispute which has erupted over it has been rumbling on for over two decades.
On Thursday, judges at the Germany's highest court, the Federal Court of Justice suspended proceedings in the latest round of the dispute between electropop pioneers Kraftwerk and German producer Moses Pelham and returned the case to the European Court of Justice (ECJ), asking it to clarify its definition of the term "pastiche."
The case centers on a two-second-long drum sequence from Kraftwerk's 1977 song "Metall auf Metall" (Metal on Metal) which Pelham used in a slightly slowed-down form in the song "Nur Mir"(Only Me) by German rapper Sabrina Setlur in 1997.
Although the use of such "samples" is common practice in the music industry, and especially in rap and hip-hop, Kraftwerk co-founder Ralf Hütter said that Pelham had neglected to request permission to use the sequence. He therefore felt that it had been stolen and pressed charges.
'This is about the fundamentals'
Since 2002, the case has gone back and forth between different courts in the German legal system and the ECJ, which ruled in favor of Kraftwerk in 2019, saying artists cannot sample pieces of music without permission.
The Higher Regional Court (Oberlandesgericht) in Hamburg, the second-highest German court, also found in favor of the electro group in April 2022 – at least for the eighteen-and-a-half years until June 2021, when EU law was transposed into German law.
From this point, it found that the reproduction of a sample such as that from "Metall auf Metall" was permissible since it constituted a "pastiche" — defined in musical terms as a piece of music which imitates the character of another work or artist, paying homage to it rather than mockingly parodying it.
However, it is this definition which the German Federal Court of Justice now wants the ECJ to clarify before handing down a final ruling.
In the meantime, the case has taken on a symbolic importance which goes beyond the mere issue of plagiarism, seeking instead to clarify what exactly constitutes parody and pastiche, at what point copyright is infringed and how to safeguard artistic freedom.
"This is about more than just the permission to sample a beat," said the presiding German Federal Court judge.
"This is about the fundamentals," said Pelham's lawyer, Matthias Siegmann.
Just a rip-off? Plagiarism in music
A jury concluded that Ed Sheeran did not copy Marvin Gaye's 1973 R&B hit "Let's Get It On." Here are other high-profile cases of alleged plagiarism.
Image: Luigi Rizzo/Pacific/Nancy Kaye/AP/picture alliance
Ed Sheeran vs. Marvin Gaye
Ed Sheeran's 2014 hit "Thinking Out Loud" uses a very common pop song chord progression, which can also be found in Marvin Gaye's legendary "Let's Get It On." The heirs of Ed Townsend, the co-writer of the Gaye classic, sued the British pop star for copyright infringement. A jury decided in Sheeran's favor; he had already won in a similar copyright suit in 2022 over his song "Shape of You."
Image: Peter Cziborra/REUTERS
Childish Gambino vs. Kidd Wes
With its scathing commentary on racial inequality, police brutality and gun violence, "This Is America" made history in 2019 by becoming the first rap song to win a Grammy Award for best song and best record. Childish Gambino, aka Donald Glover, was later sued for allegedly lifting its "lyrical theme, content and structure" from a song by rapper Kidd Wes. The case was dismissed in March 2023.
Image: picture-alliance/AP Images/J. Salangsang
Nicki Minaj vs. Tracy Chapman
In court documents made public on January 7, 2021, rapper Nicki Minaj was forced to pay $450,000 (€369,000) to singer-songwriter Tracy Chapman for ripping off Chapman's song "Baby Can I Hold You" in her tune "Sorry." Minaj's team had repeatedly asked for permission but was turned down. Eventually, however, the song was leaked on the radio and became a hit.
Image: AP Photo/picture alliance
Led Zeppelin vs. Spirit
"Stairway To Heaven" is one of the most popular songs in rock music history. But was it really written by Jimmy Page (center right) and Robert Plant (center left)? The heirs of Randy Wolfe, singer and guitarist of the band Spirit, expressed strong doubts in 2014. On March 9, 2020, a US appeals court reinstated a ruling that Led Zeppelin did not steal "Stairway to Heaven" from Wolfe.
Image: picture-alliance/Photoshot
Lana Del Rey vs. Radiohead vs. The Hollies
It can't be denied that Lana Del Rey's song "Get Free" sounds a lot like "Creep," Radiohead's famous hit. The band, therefore, wanted writers' credits on the song. Ironically, some parts of "Creep" have been copied as well, namely from The Hollies' "The Air That I Breathe" from 1974. In this case, the two bands came to an out-of-court settlement.
Image: Imago/PA Images/D. Lawson
Sam Smith vs. Tom Petty
The music industry has been haunted by numerous plagiarism controversies in recent years. In 2014, Sam Smith's "Stay With Me" triggered some uproar. The song was said to have been inspired by Tom Petty's "I Won't Back Down." Rock legend Petty, who died in 2017, then obtained some of the royalties. But he wasn't angry, stating that the similarities may have occurred incidentally.
Image: picture-allianc/empics/Y. Mok
Robin Thicke & Pharrell Williams vs. Marvin Gaye
Robin Thicke and Pharrell Williams were less lucky. After it turned out that their successful hit "Blurred Lines" was a rip-off of Marvin Gaye's song "Got to Give It Up," they had to dig deep into their pockets. In 2013, they had to pay roughly $7 million to Gaye's heirs, even though they continued to deny that they had copied Gaye's song.
Image: picture-alliance/AP
Moses Pelham & Sabrina Setlur vs. Kraftwerk
In one case, just two seconds of sound resulted in a 20-year lawsuit that raised the question: Where does plagiarism start, especially in the digital era? Music producer Moses Pelham sampled two seconds of the beat of "Metall auf Metall," a hit by the German band Kraftwerk, for the song "Nur mir" by rapper Sabrina Setlur. The case ended up before the European Court of Justice.
Image: picture-alliance/dpa/RMV via ZUMA Press/Mike Tudor
Shakira vs. Ramon Arias Vasquez
Yet another pop star accused of plagiarism is Shakira. In 2014, a US federal court came to the conclusion that her hit "Loca" was an illegal copy of the song "Loca con su Tiguere" by Ramon Arias Vasquez from the Dominican Republic. Several million records of Shakira's "Loca" were sold all over the world.
