EU top court issues guidance in decades-long Kraftwerk sampling case

The European Court of Justice (ECJ) has provided guidance on when copyright-protected elements can be used in music production without the prior authorization of the copyright holders.

The ruling said that an exception covers the practise of "pastiche" as an artistic engagement where the new creations "evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright."

"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 said.

The ruling is linked to a long-running dispute between German electro-pop pioneers Kraftwerk and music producer Moses Pelham over alleged plagiarism.

Pelham had used a slightly slowed-down version of a drum sequence from the 1977 Kraftwerk song Metal on Metal in the song Nur Mir (Only Me) by German rapper Sabrina Setlur, which was released about two decades later.

The use of such a "sample" from an old song is a highly common practice in the music industry. Pelham, however, had not asked permission to use the sample. Kraftwerk co-founder Ralf Hutter felt the sample had therefore been stolen and sued the producer.

Germany’s highest court had sent the case back to the ECJ for further clarification after a first ruling in the case in 2019 in favour of Kraftwerk, saying musicians cannot sample songs without permission but left room for exceptions if samples were highly modified.

To settle the case, which has been going on for more than 20 years, the German court asked the ECJ to provide a definition of the term "pastiche" and the exception that applies to it.

Germany's top court has take into account the ECJ's guidance when making a final ruling in the case.