EU court considers long-running Kraftwerk plagiarism dispute dating back to 1997
The European Court of Justice has provided new guidance in a long-running plagiarism dispute involving German electronic pioneers Kraftwerk, ruling on the use of copyright-protected music without prior authorisation. The case will now return to Germany’s Federal Court of Justice for a final decision.
The dispute dates back to 1997, when German rapper Sabrina Setlur released the track Nur Mir. Producer Moses Pelham used a short, slowed-down drum sequence taken from Kraftwerk’s 1977 track Metall auf Metall. While sampling is common in the genre, Kraftwerk argued that permission had not been sought and filed a complaint.
Clarifying ‘pastiche’ in EU law
The case has since moved through multiple courts, including a 2019 ruling by the EU court in favour of Kraftwerk. However, changes to European copyright rules, implemented in Germany in 2021, introduced an exception allowing the use of existing works without permission if they qualify as a “pastiche”.
Germany’s top court asked the EU judges to clarify that concept before issuing a final ruling.
In its judgment, the court defined pastiche as “creations that refer to one or more existing works but clearly differ from them (...), in order to enter into an artistic or creative dialogue with those works that is recognizable as such.” It added that “that dialogue can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them”.
The court further stated that, to qualify, it is sufficient that someone familiar with the original work recognises the new creation as such.
The German court must now determine whether Nur Mir meets that threshold. The EU judges noted, however, that German courts had previously found the track “enters into an artistic dialogue with the rhythmic sequence from the song ‘Metall auf Metall’, which belongs to a different musical genre, and, despite the slower tempo and modulation, is recognizable as a reference to the original”.
The ruling is expected to have broader implications for the music industry, where sampling remains a widely used practice.
Kraftwerk © PHOTO PHOTOSHOT
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