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Electronic Pioneers Kraftwerk Sets Rules for Sampling Usage

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In 2000, Kraftwerk members Ralf Hütter and Florian Schneider took producers Moses Pelham and Martin Haas to Hamburg’s lower civil court for using, by means of the technique known as sampling, approximately two seconds of a very distinctive percussion sequence from their 1977 song “Metall auf Metall” as a loop in the song “Nur Mir” for the German rapper Sabrina Setlur (a.k.a. Schwester S.).

On the basis that their related right as phonogram producers was infringed, Hütter and Schneider asked for a prohibitory injunction, damages and the surrender of the phonograms featuring the song “Nur Mir” for the purposes of their destruction.

Even if in the first instance, a decision by Hamburg’s lower court stated that re-purposing even the smallest sample of a song counted as copyright infringement, the case bounced between courts during eight years before landing in Bundesgerichtshof (Federal Court of Justice, “BGH”), Germany’s highest civil court.

Re-purposing even the smallest sample of a song counts as copyright infringement.

Surprisingly, BGH ruled on 20th November 2008 in favor of Setlur and Pelham stating that sampling musical notes do not violate copyright if it does not contain any song’s melody and if it is part of a completely new musical work bearing no resemblance to the original.

The key to the German higher court ruling is that sampling a melody does constitute infringement, but a couple of notes taken from a previous recording used in such a way as the original melody is not identifiable – which was arguably the case in “Nur Mir” – does not.

That higher court decision recoursed the case back to the Hamburg court for the purpose of reconsidering their previous ruling anew.

But in 2012 Germany’s Federal Court of Justice reversed that decision in favor of Hütter and Schneider, granting them an injunction over the song as well as demanding damages. At that time, the court stated that the hip-hop producer could have recorded a similar drum loop without using the sample.

However, Setlur and Pelham appealed to Germany’s constitutional court and in May 2016, the country’s highest court took a surprising view of Hütter and Schneider’s claim, ruling in favor of Pelham and Setlur because the sampling “led to the creation of a totally new and independent piece of work… the economic value of the original sound was therefore not diminished”. This time, the court ruled that sampling is a typical aspect of hip-hop’s artistic expression, that the impact on the contested intellectual property was “negligible” and they considered that “artistic freedom overrides the interest of the owner of the copyright.”

The defendants also attempted to knock the plaintiff’s ownership of infringing material by pointing to how the beat was allegedly preexisting material. Finally, Perry and Luke called experts to the witness stand in an effort to show a lack of any substantial similarity of protected expression.

The trial had unexpected moments, from Perry offering to perform her hit live amid difficulties with the courtroom sound system, to a shooting that took place just outside the courthouse on the day Dr. Luke testified.

During the trial, external musicologists were brought to the stand to testify.

Most copyright cases either settle or are dismissed before ever getting to trial, but “Dark Horse” joined “Blurred Lines” and “Stairway to Heaven” as songcraft that’s been put to a jury this decade. Jurors began deliberating after closing arguments Thursday, and returned their decision Monday afternoon.

Outcome:
European Court of Justice concluded on July 29, 2019, that the use of a sound sample taken from a phonogram allowing the work from which that sample was taken to be identified may, subject to certain conditions, amount to a quotation, in particular, provided that such use is aimed at entering into a ‘dialogue’ with the work in question. However, use of that sample if it is not possible to identify the work in question is not a quotation.

The song “Metal on Metal” from Kraftwerk has been sampled several times. Here’s a list of songs that included a sampling parts in :

TBD…

Listen to both songs and make your opinion:

Listen to the above-mentioned Run DMC’s song :