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.