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Kraftwerk sampling in the Court of Justice of the European Union

Chris JHolland30 July 2019

Members of the veteran electronic music group, Kraftwerk (Ralf Hütter and Florian Schneider-Esleben) have an answer from the CJEU to their claim that copying extracts from their recordings to be used in other musical recordings in the form of “sampling” should only be carried out with their permission. The case which concerns the sampling of a brief extract from their song “Metall auf Metall” which was then played as a continuous loop in a 1999 song produced by Moses Pelham and Martin Haas and performed by Sabrina Setlur called “Nur mir”. The CJEU case number is C-476/17.

The court ruled  that in terms of EU copyright law, particularly the Information Society Directive, sampling from someone else’s recording generally requires permission, because it is a reproduction “in whole or in part” of the original work.

On the other hand, if the extract sampled has been modified to the extent that it is not recognisable as the original work (“unrecognisable to the ear”), then that would be justifiable in terms of  Article 13 of the Charter of Fundamental Rights of the European Union, which deals with freedom of artistic expression. Can we conclude that the sampling of Metall auf Metall in the production of Nur Mir would be covered by the latter proviso? After all, the sample consists of a 2 second rhythm sequence, which is arguably not recognisable as the original work (even though it might sound strangely familiar to a really dedicated admirer of Kraftwerk’s music).

This decision could have far reaching implications for the music industry, given that sampling is a widely used technique, particularly in Hip-Hop recordings and that producers are not always in the habit of assiduously seeking permission from the copyright owners of the original recording. The judgment of the CJEU can be found here.   The case itself is also something of a “veteran” as Kraftwerk have been pursuing it for some 20 years.