The European Union’s top court has handed down a ruling regarding the sampling of a Kraftwerk track in a case that could change the course of music forever.
Back in 1977, German electronic music pioneers Kraftwerk released their sixth studio album, Trans Europa Express. In addition to featuring classic songs such as the record’s title track, it also included the two-minute industrial instrumental, ‘Metall auf Metall’.
20 years later, this tune had hit the mainstream in Germany, having been sampled by producers Moses Pelham and Martin Haas to serve as the basis for ‘Nur Mir’, a 1997 song by rapper Sabrina Setlur.
Unfortunately, such an act raised the ire of Kraftwerk, with Ralf Hütter and Florian Schneider suing the producers for copyright infringement.
While the producers lost the case at first, the decision was reversed upon appeal, before again being upheld by Germany’s constitutional court in 2016, who explained that strict restrictions on sampling can damage the creative process.
Now, the European Court of Justice has weighed in on the matter, ruling in favour of Kraftwerk in a decision that could have far-reaching effects in the world of music.
Check out ‘Metall auf Metall’ by Kraftwerk:
As the Financial Times reports, the ECJ ruled on Monday that while modified samples that appear unrecognisable from the original may be freely used under the “freedom of the arts”, any “sound sample taken from an existing recording must be authorised by the original producer.”
“Sampling without authorization can infringe a phonogram producer’s rights,” the court explained in a statement. “However, the use of a sound sample taken from a phonogram in a modified form unrecognizable to the ear does not infringe those rights, even without such authorization.”
“After 20 years, the ECJ clarified in the ‘Metall auf Metall’ case that a phonogram producer is allowed to ‘permit or prohibit the reproduction of its phonogram’ and that under certain conditions it can also defend itself against the use of third parties even if the audio sequence used is very short,” explained the chairman of German musician’s union BVMI, Florian Drücke.
Of course, the question now becomes, “what does this mean for the future of music?” Well, as any fan of music might be aware the topic of sampling is a rather contentious one.
While artists like DJ Shadow, Girl Talk, and even Australia’s The Avalanches are renowned for their use of samples in their music, many musicians consider such an act to be a breach of their own rights.
Check out ‘Nur Mir’ by Sabrina Setlur:
https://www.youtube.com/watch?v=_KQLxP-UX_Y
As it stands, many countries have different attitudes when it comes to the legality of sampling. Under US copyright law, only works that have been previously registered with the US copyright office can be the subject of a copyright infringement lawsuit.
Similarly, Australian copyright law notes that while you must be granted permission by the copyright holder before you use their music, sampling is a different ballgame altogether.
Very quickly the matter becomes related to whether the samples constitute a substantial element of the new work, and the originality of the work, meaning that often, matters of sampling are decided on a case by case basis.
However, this new ruling by the European Court of Justice has seen some people become rather worried for the future of music.
Speaking to the Financial Times, Raffaella De Santis, a senior associate at Harbottle & Lewis law firm, explained that the ruling “could have a chilling effect on artistic expression.”
“Where we may well see a difference is in the creative process itself, in making and releasing music, especially in sample-heavy genres such as hip hop.”
At this stage, it’s not clear what effects this ruling will have on the future of music in Australia, but undoubtedly, fans of sampling copyrighted works may find themselves anxiously watching the actions of courts around the world.
Check out RiP. A Remix Manifesto:
