Administration's Shortlist For Ambassador Appointments Includes Four Hollywood Donors

Kraftwerk's 12-Year Lawsuit Over A 2-Second Sample Comes To A Bizarre End

from the caution:-post-contains-250%-of-your-recommended-daily-allowance-of-WTFness dept

Fri, Dec 21st 2012 6:35pm — Tim Cushing

As we all know, not only is Germany the land of chocolate, it's also the land of effed-up IP laws. And this case under discussion here is severely effed-up, not to mention long-running. This is a 12-year (and counting) battle waged over a 2-second rhythmic sample.

Back in 1977, Kraftwerk released a track called "Metall auf Metall" that contained a rather distinctive bit of percussion that ran the length of the track. Twenty years later, a German rapper called Sabrina Setlur recorded a single called "Nur Mir," which featured a two-second loop of Kraftwerk's percussion. In 2000, Kraftwerk took producers Pelham and Haas to court (specifically, Hamburg's lower civil court) for using an uncleared sample.

For the next eight years, the case bounced between courts before landing in Germany's highest civil court (BGH), which initially ruled against Kraftwerk, stating that "sampling musical notes does not, in principle, violate copyright." This overturned a decision by Hamburg's lower court, which stated the opposite: that re-purposing even the smallest sample of a song counted as copyright infringement. It had also issued an injunction against Pelham and Haas, the producers of "Nur Mir," forbidding further distribution of the offending single.

BGH's 2008 decision, while making sampling possible again, laid down some restrictions, preventing some sort of sampling land rush for occurring.

The key to the German higher court ruling is that sampling a melody does constitute infringement, but a couple of notes taken from a previous recording used in such a way as the original melody is not identifiable – which was arguably the case in "Nur Mir" – does not.

It also required that the sample "be part of a completely new musical work bearing no resemblance to the original," heading off any sort of Vanilla Ice-esque developments.

So, despite the highest civil court in Germany ruling that "Nur Mir" didn't infringe, the case was kicked back down a level to Hamburg's highest regional court (OLG) in order to test the extent of Germany's equivalent to fair use. In August 2011, OLG returned a decision agreeing with the BGH's findings, but allowed Kraftwerk to appeal this decision as the court was unsure it had reached the right decision.

The regional court did, however, make a couple of statements, along with setting up one of the stranger demonstrative tests ever deployed in a courtroom setting. The first statement indicated that the court felt "Nur Mir" was sufficiently transformative, even if it contained a recognizable sample.

In any case, the OLG found that "Nur Mir" possessed an entirely different character from"Metall auf Metall," even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn "Nur Mir" into an independent work according to § 24 (1) UrhG.

The second statement was a bit more troubling, raising questions on how exactly someone would determine a sample to be infringing, putting the weight of that decision on the hypothetical customer.

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting.

A worrisome baseline to set, especially when declaring "Nur Mir" to be non-infringing. This puts the determination in the hands of the proverbial "moron in a hurry," only a moron with a decent sized record collection.

Then it gets seriously weird. Despite finding the disputed track to be non-infringing because it was sufficiently transformative, the court started asking itself questions about whether the sampling should be permitted at all without clearance, especially if the sample could be reproduced with the technology in use at the time (1997). Since the highest court had issued no guidance on the subject before kicking it downstairs, the OLG came up with its own idea, which was implemented and then re-demonstrated once the case returned to the BGH (which is erroneously referred to as the "Supreme Court" in the article). The court found in favor of Kraftwerk... and key evidence was provided by expert witnesses banging on pieces of metal and feeding them through a 1996 Akai sampler.

The question at the heart of the case is how far sampling the work of other artists—a mainstay of modern hip-hop and techno—is permissible when creating new music. The answer given by the Supreme Court is that it is only permissible if the same effect could not have been produced by the new artist himself. After various demonstrations by expert witnesses, crashing metal on metal and using instruments such as a 1996 Akai Sampler, it was shown that an imitation of the sound-bite would have been possible in 1997. Hence, on December 13th, it ruled in favour of Kraftwerk.

So, at this point, here's what we have.

Hamburg lower court declares that uncleared sampling is not permissible ever.
Hamburg higher court declares that melody lines cannot be sampled but rhythmic samples are OK, with several caveats.
Germany's highest civil court declares sampling is OK only if the sample cannot be reproduced with existing technology, discarding transformative use altogether.

Is this is just the court's way ultra-weird way of telling would-be samplers to "make original music?" The BGH, for unclear reasons, stripped away OLG's definition of "independent work," and handed down a severely broken ruling that pretty much eliminates sampling as an option for producers. Ruling in favor of Kraftwerk and setting this bizarre precedent completely clouds the water on sampling and insinuates that a rapper utilizing a 2-second sample on single released 20 years after the original somehow makes these two tracks (and artists) interchangeable in the customers' minds, thus damaging the market for the original artist. "Oh, I was going to buy some Kraftwerk but this rap single will do."

Then there's the conundrum this decision presents: the only way for the customer (or plaintiff) to decide whether a track has an "equivalent sound" (and thus, infringing) is after the track is released. The lawyer for Pelham and Haas poses this question.

How can you be sure that the artist has succeeded before the work has been released to the consumer?

Indeed. This creates a considerable chilling effect, one that not only discourages sampling, but eliminates transformative use from the equation by disregarding OLG's statement that "Nur Mir" was an "independent work," despite its recognizable sample. Anything that sounds like anything else can trigger a copyright infringement suit, whether or not an actual sample was used. Restricting sampling to "unreproducible sounds" leaves artists with little but God's voice and the weird noises animals make when they're happy as the only permissible sampling material.

Pelham and Haas are looking to bring this case to Germany's constitutional court (the actual Supreme Court), stating that this decision might violate article five of the constitution, which grants the right for art to be "informed without hindrance from accessible sources." Hopefully, they'll succeed. If nothing else, the laws regarding sampling as they stand now are completely unusable and cobbled together from bits and pieces of a lawsuit that has dragged on far too long over way too little.

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Filed Under: copyright, germany, kraftwerk, samples

30 Comments

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Shadow Dragon (profile), 21 Dec 2012 @ 7:50pm

hmmm
I wonder hoe long it'll for those fifth column trolls Average_bob_of the_blue posting there predictiable moronic argument that supposedly think it'll help their position hut it only helps copyright reformists or abolitionist arguments.
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That One Guy (profile), 21 Dec 2012 @ 7:53pm

You know, given how music and musicians seem to be treated in Germany, I'm starting to wonder if they are simply trying to drive any and all musicians out of the country entirely.
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Anonymous Coward, 21 Dec 2012 @ 9:03pm

I'm going to record a single bass drum note, single snare drum note, and single hi-hat note. Then I'm going to sue the world!!! Mwa ha ha!!!
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Anonymous Coward, 21 Dec 2012 @ 9:36pm

What a waste of 12 years
Instead of suing over something as trivial as 2 seconds of music, people should just get over themselves and deal with it so everyone can get on with their lives.
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jupiterkansas (profile), 21 Dec 2012 @ 9:49pm

Music should have never ever never gone anywhere near the law.
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Anonymous Coward, 21 Dec 2012 @ 10:43pm

o.O'???

WTF is wrong with German courts?

What is the difference between melody and rhythm?
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Anonymous Coward, 21 Dec 2012 @ 10:57pm

"Is this is just the court's way ultra-weird way of telling would-be samplers to "make original music?"

...brain had to read that about 15 times till it made sense. Going to assume your brain was as tired writing that as mine is trying to comprehend.
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Anonymous Coward, 21 Dec 2012 @ 11:25pm

Re:
Quote:
"Is this is just the court's way ultra-weird way of telling would-be samplers to "make original music?"

Correction:
"Is this just the court's ultra-weird way of telling would-be samplers to make original music?"
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Karsten, 22 Dec 2012 @ 2:30am

I had a class once with Prof. Hoeren one of the most progressive German judges for copyright and media. Well, he was a judge until he compared structures in the GEMA with the mafia and was expelled because of supposedly being bias.
Anyways, he talked about the case before the BGH decided and what I remember is that Hamburg's court has a certain reputation and the decisions just fit that reputation.

Also, as far as I know you are still allowed to sample music from other artists if they agree. This stems from a big difference between continental European copyright philosophy and the Anglo-American philosophy. Here in Germany, the love of the creator to her/his creation is protected. Our copyright law is actually called "Creator's law/right". This has great effects. For instance, John Lasseter was once really afraid that Disney would ruin the Toy Story characters at it is described in the Steve Jobs biography. After they made Toy Story 1 Pixar and Disney got into a clash and Disney threatened to sell everything out with Direct-To-DVD quick mashups and you know. Lasseter actually cried about the loss of his creation. This cannot happen in Germany. Lasseter would have been not able to loose his rights and could have stop Disney form making bad movies with the Toy Story characters. His love to his creation is protected not the money Disney put into it.
In the US he sold everything depending on the contracts. Money is all that counts.

So this case was not only about the money but about the love of Kraftwerk to their music and they just did not like what Sabrina Setlur made of it. Plainly said.

I doubt it will have any big effects on sampling since the creators have to sue. As long as they do not oppose what you did it's fine.
So far no big companies are involved to get some money out of it anyways.

Personally I do not like the decision and a lot of times the German system of "ask first then do" instead of the US way of "do and then ask" stops certain innovations. E.g. Youtube would have never worked here in Germany because the company would have get sued a lot in the beginning, well it is. On the other hand it is great for artists because they don't have to be afraid of being sold out to big companies.
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Arno, 22 Dec 2012 @ 3:14am

The OLG Hamburg
are known for their weired decisions and are usually seen as trolls here in Germany. Furthermore decisions of the BGH are often dropped by the Supreme Court (BVerfG). It has something to do with the hierarchy and the competition between the judges in those courts. The can't stand each other. It's that simple.
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Anonymous Coward, 22 Dec 2012 @ 6:32am

I'll stick to Country and Blues! Did you EVER hear of a Country Artist or Blues artist suing another one over a lick? No frakkin' way. It's music and it's meant to be shared. Like Joe Walsh says and I quote "Yea I record a lick and I hope you copy it and come up with another lick and record it, then I'll copy that and come up with another.". Imagine all those great licks we get came from one! As far as I'm concerned: As soon as you release the track or video you gave it away. If you don't want anybody to look at it then don't release it. Don't play it on the radio, don't show it on TV. Do not give me an opportunity to copy it. Har! Kinda defeats the purpose.
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Anonymous Coward, 22 Dec 2012 @ 8:06am

It's clear to me that they're trying everything they can to dance around the issue of "How do we rule that sampling melodies from songs is illegal but not make it where every lawyer in the universe can make arguments that every song is infringing?". A decision that they will ultimately fail to correctly answer and will instead either result in thousands of lawyers suing everyone for everything or *gasp* someone uses sampled melodies in their songs and gets away with it.

I imagine this is why this case keeps getting kicked around, whoever makes a final ruling regarding this is going to be burned at the stake figuratively.
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PRMan, 22 Dec 2012 @ 8:27am

Re:
There's more than one lick in Blues???
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Rolfing Oder Golfing, 22 Dec 2012 @ 11:10am

Germany should really adopt copyright and patent standards inline with most other countries. Perhaps an EU standard everyone could get behind?
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Dixon Steele (profile), 22 Dec 2012 @ 11:11am

So, if you can only sample something "if the sample cannot be reproduced with existing technology," and everything recorded in the past can obviously be reproduced with existing technology... you can only sample songs from the future?
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RegalBeagle, 22 Dec 2012 @ 11:22am

This might force 'artists' to have to make 'original' music?
Good grief! I didn't realise there were any and that they could.
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Anonymous Coward, 22 Dec 2012 @ 3:02pm

Re:
Quote:
Lasseter actually cried about the loss of his creation. This cannot happen in Germany. Lasseter would have been not able to loose his rights and could have stop Disney form making bad movies with the Toy Story characters.

I disagree moral rights of authors is one of the most evil ideas ever implemented into law. It had its place now it don't.

The creator has the ability to stop not only Disney but anybody else who he deems to be making something bad.

If I want the right to create I have to let go of the idea that I can stop others from creating is a double edge sword.

Even Disney should be allowed to make bad movies and RAPE others creations but so do we, every fan should be free to RAPE somebody's else creation so they scratch that itch they have and let the democratic process of many choosing if something is worthy or not their time by themselves and not have been chosen for them by some capricious ego alone.

In a time when people had no way of telling others if they agreed with something or not and your only help would come from news companies maybe protecting those rights in that manner was ok, in the age of the internet where anybody can go public and reach millions this is no longer necessary, or wanted, it was a tradeoff and it has serious consequences when those same people capable of stopping others can reach even deeper into society and harm every little guy out there.
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Kevin (profile), 22 Dec 2012 @ 11:12pm

No one owns music
Out of the multi billion tunes that have been composed since the caveman hummed his first combination of notes every known combination has been used somewhere in a song.
No one has a right to own any chord, riff or phrase.
Composer's rights should only apply to the whole work where there is a unique combination of everything to which the quantity is indefinite.
Kraftwerk may have themselves used a combination previously used by someone once. The only difference is that someone hasn't discovered it yet.
In fact out of all of Kraftwerk's works, like just about any song written, 80-90% has been used before.
The courts need to understand this and toss out all petty claims if it does not relate to an entire work.
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cwolf, 23 Dec 2012 @ 11:54am

Kraftwerk
Fuck kraftwerk,,,
Their stuff sux anyhow.
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Anonymous Coward, 23 Dec 2012 @ 4:06pm

Re:
There's very little music which is truly original. It's all been inspired by something/somebody else. That's the way cultures work: building on what came before.
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Tricia, 23 Dec 2012 @ 4:37pm

Last post sums it up for me, guys. Build on forefather's hard work and knowledge. Be willing to share and open up a world to the young and hopeful that we hope and dream will take us into our old age and a healthy future. Eat mince pies, contemplate a world without religion and laws, eat more mince pies...
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Tricia, 23 Dec 2012 @ 4:37pm

Last post sums it up for me, guys. Build on forefather's hard work and knowledge. Be willing to share and open up a world to the young and hopeful that we hope and dream will take us into our old age and a healthy future. Eat mince pies, contemplate a world without religion and laws, eat more mince pies...
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Anonymous Coward, 24 Dec 2012 @ 10:38am

Re: Re:
You're confusing unique with original. Even a song that generously apes from a specific source is an original composition, as long as the particular expression of the contained ideas didn't exist before.

There are degrees of originality, but in the end, if it's a song (for instance) that didn't exist before, then it's original.

A song that doesn't contain recognizable elements from elsewhere, or didn't resemble any music that came before, would be considered unique. Unique songs are indeed rare, but not unheard of. Schoenberg's music would be one example.
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Anonymous Coward, 24 Dec 2012 @ 10:47am

Re: No one owns music
What exactly does 'not the entire work' mean?

This is why conversations about sampling by non-musicians gets annoying.

The issue isn't that Setlur's song features a rhythm pattern that is just like Kraftwerk's, it's that Setlur is actually using Kraftwerk's recording for commercial purposes. These are very different things in a legal sense. There are various licenses to obtain for this purpose. Imagine instead of someone sampling a bit for a new song, that they "sampled" thirty seconds to score their ammunition advertisements to run on the radio.

Sampling is generally a touchy subject because you have to consider all the different avenues that are used to exploit artists. If it's OK for kids on Youtube to do whatever they want with "samples" of a song, then you'd need to allow all kinds of other corporate uses without remuneration. It would be quite a devastating blow to the economic health of the music market.
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Anonymous Coward, 25 Dec 2012 @ 7:52am

whats 2 seconds have to do with it ??
Masnick talks as if you can commit a crime quickly (say for only 2 seconds) that, that somehow makes that crime ok.

I did not know there was a time limit on such things, does that also mean the if I shoot someone I am only committing the crime for the duration of the bullets travel ?

and as soon as I have finished, does that mean I am no longer guilty of the crime, (because it only took a couple milliseconds to do).

also, I might of only been a 2 seconds sample, but how many times was that 2 seconds looped on this track ? 20, 50 ??

I guess, it's a long break and Masnick needs something to generate some google $$$$$..

Good luck, lets hope you have a better grasp on the law and moral requirements when you 'tech' your kids right from wrong.
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Killercool (profile), 25 Dec 2012 @ 9:15am

Re: whats 2 seconds have to do with it ??
Fair use is ALWAYS legal, no matter who doesn't like it. The only reason there is any gray area is because the copyright moguls refuse to allow their flunkies to codify fair use.
Because codified fair use would declare certain uses beyond their control, which is all the current system is about.

Also, if the first 2 seconds are ok, why aren't the next 49? Why is a legal use suddenly illegal if I do it twice, when each use would be legal on it's own?
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Anonymous Coward, 25 Dec 2012 @ 3:09pm

...and the lawyers laugh all the way to the bank.
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dennis deems (profile), 26 Dec 2012 @ 6:27am

Re: whats 2 seconds have to do with it ??
I see you have devoted long hours of profound thought on the matter. Thanks for sharing with us!
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John Fenderson (profile), 26 Dec 2012 @ 9:42am

Re: Re: No one owns music
If it's OK for kids on Youtube to do whatever they want with "samples" of a song, then you'd need to allow all kinds of other corporate uses without remuneration.

Why?

But even if so, then why is that a bad thing? If the sample is used in a transformative way, I honestly don't see the ethical problem here.
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Karsten, 29 Dec 2012 @ 3:08am

Re: Re:
I have to admit that I did not think about anybody else but the "evil big companies".

However, I guess some point in the middle is best. Imagine your work was used for evil propaganda and will be associated with that propaganda for all time (I hope I don't hit Godwin's law too quickly). Don't you think it is fair for an artist to enforce that his or her work is not used in such a way?
Obviously, such a right is abused a lot. For instance, Brecht's decedents got the copyrights from big publishers by arguing that Brecht whose work promotes left wing ideas would have never sold is copyright to "big evil companies". They did so just to sell the copyrights again for big money.
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