Top German court refers Kraftwerk 'pastiche' case to ECJ

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.

mf/rc (dpa, AFP)