… this is how a short sequence from the piece „Metall auf Metall“ (metal on metal), which can be found on the album „Trans Europa Express“ by the German band Kraftwerk from 1977, can be described.
And it is precisely this beat, lasting just 2 seconds, that is at issue in the dispute between the German pioneers of electronic music and hip-hop producer Moses Pelham (53), which has been occupying the judiciary up and down, including the ECJ for now 22 years. Pelham had slightly slowed down the sound sequence and then mixed it in an endless loop under the song „Nur mir“ by the long forgotten rapper Sabrina Setlur. A violation of copyright in the opinion of Kraftwerk protagonist Ralf Hütter (77), usual sampling in the electronic music in the opinion of Pelham. In the meantime, there are 10 decisions on this, including five from the Federal Court of Justice (BGH), one from the Federal Constitutional Court (BVerfG) and one from the ECJ. One may say: More is not possible – but it is.
20 years through all judicial instances
At its core, the „Metall auf Metall“ dispute revolves around a very fundamental question: Is two-second sampling sufficient to assume reproduction or distribution that violates the rights of the copyright holder?
Both the Regional and the Higher Regional Court of Hamburg (LG and OLG Hamburg) considered this to be proven, since the German Copyright law (UrhG) simply does not provide for a minimum threshold for the extraction of sound parts. Thus, any sampling constitutes an infringement.
In the first of its decisions, the BGH was also unable to recognize any legal error in this. However, the Senate did not want to leave it at this simple statement and also examined at the same time whether the sound sequence does not fall under the free use according to § 24 UrhG (old version). According to this, until the reform of the copyright law in 2002, it was permissible to use protected works as inspiration for one’s own works even without the consent of the originator, if the used work „fades“, i.e., differs enough from the new work. Although the BGH considered this to be the case, it also felt that an exception had to be formulated at the same time, and created the „repetition requirement“, which had not yet been legally established.
Only those who can’t do it themselves are allowed to sample
According to this decision, which is still controversial today, free use does not apply if the sampler would actually have been able to play the required sequence of sounds itself and sampling was therefore not necessary.
After referral back, the OLG Hamburg confirmed that Pelham could have undoubtedly recorded these two seconds, which he had taken from Kraftwerk’s „Metall auf Metall“, himself. A second way to Karlsruhe followed, where the BGH confirmed the opinion, however.
Next, the Federal Constitutional Court had to deal with the issue of copyright infringement, which actually overturned the decisions of the OLG and BGH (1). The judges recognized an unjustified encroachment on Pelham’s artistic freedom and found that § 24 UrhG (old version) was interpreted too narrowly by the construct of the repetition requirement, because sampling must be possible, regardless of whether the sound sequence was borrowed or recorded by the artist. If the BGH did not like this view of the matter, it would be free to submit a request for a preliminary ruling to the ECJ.
The BGH immediately took this opportunity and wanted to know from the ECJ what the position of European Union law is on the reproduction and distribution of sound recordings. In this context, it is important to know – so as not to make the matter too simple – that only acts of use as of December 22, 2002 are relevant for the ECJ case law in the „Metall auf Metall“ case. At that time, the so-called InfoSoc Directive came into force, which harmonized copyright law in the EU. For the period before that, therefore, only national, i.e., German, law was relevant.
Further away than ever from a solution thanks to the ECJ
Those who had feared that the ECJ would not provide any clarity in the matter were not disappointed. The Luxembourg judges found that even the extraction of the smallest parts of a sound carrier constitutes a reproduction and thus an infringement of the rights of the sound carrier producer – but only if the extracted part is recognizable in the new work. However, the ECJ rejected a distribution, i.e., the marketing of a copy of the sounds recorded on the sound carrier, with regard to short samplings such as the two „metal on metal“ seconds. This right was only affected if substantial parts of a phonogram were taken (2).
On this occasion, the ECJ found in a side sentence that Union law does not provide for „free use“ – and thus § 24 UrhG (old version), which thanks to the Federal Court of Constitution should actually have been the „salvation“ of the sampler, was cleared en-passant.
It all depends on the point in time
With the decision of the ECJ in bag, the BGH had to deal with Kraftwerk vs. Pelham once again in 2020 and also had to distinguish between two legal situations: On the one hand, there were actions before December 22, 2002, during which national law and the requirements of the Federal Court of Constitution had to be observed. According to the BGH, the following applies to this time: Reproduction in sampling yes, but possibly allowed without consent via free use according to the old § 24 UrhG.
For the period after December 22, 2002, on the other hand, Union law and the requirements of the ECJ were decisive. This means for acts of use in this period: copying yes, but only if the sample is recognizable. If, on the other hand, the sampled sequence in the new song is not recognizable, then it is a matter of a possible legal justification to allow sampling without consent, because the samplers can no longer rely on § 24 UrhG (old version), which is contrary to EU law, at least in Germany. However, the BGH anticipated that restrictions from copyright law, such as the right to quote or the pastiche, which samplers like Pelham could invoke, were out of the question for this period, as they were not provided for in Union law.
Nevertheless, the BGH was prepared to build a golden bridge for the OLG Hamburg, to which the matter was referred back once again, in order to finally bring the legal dispute to a conclusion. The Senate did not see any evidence for acts of use after December 22, 2002. In the absence of a risk of first offence or repetition, Kraftwerk would not be entitled to injunctive relief or damages.
We open a new bottle: „Pastiche”
But the OLG Hamburg did not want to let go of this obviously cherished case so easily. In its ruling, it differentiated between the two legal situations before and after December 22, 2002, as stipulated by the BGH. In doing so, following the ruling of the Federal Constitutional Court, sampling was deemed permissible in accordance with § 24 UrhG (old version). On the other hand, the judges considered the danger of repetition, which the BGH had not seen, as given. In fact, Pelham had re-released the Setlur track, including the disputed sound sequence, on the market in 2004 with a „Best of“ collection. This reproduction was considered infringing according to the decision of the BGH in 2020.
But even after this ruling, the case is far from over. After the ECJ had cashed the previous right to imitation according to the previous § 24 UrhG (old version), this was replaced from 7.6.2021 by the new § 51a UrhG, which contains a new protection barrier: the „pastiche“. This is a somewhat outdated term for the imitation of the style and ideas of an artist. In short, under certain conditions, sampling, remixing, memes, GIFs or mash-ups are to be permitted in order to give artists the opportunity to create something new by adapting copyrighted works.
And this is exactly where the crux lies, because what exactly distinguishes a permissible pastiche from a copyright-infringing theft of intellectual property is not defined in the law. Media lawyer Philip Scholl defines pastiche as „exceptionally permitted use of other people’s rights without licensing, while maintaining an internal distance from the existing work and in the form of an artistic analysis of the existing work.” To a certain extent, this represents the synopsis of the few relevant decisions of German courts published to date.
For example, in its decision „The Unknowable“ (3) the Regional Court of Berlin considered a use of another’s work (an online computer graphic) by a painter to be permissible, since the newly created work „recognizably deals with the preexisting work in an artistic manner and thus places it in a new context in terms of content and accessible to diverse interpretations.“
The OLG Hamburg also applied this new standard for acts of use from 7.6.2021 – and thus created a third time period with a new legal environment. The judgment states: „The reproduction of the sequence from „Metall auf Metall“ at issue in the dispute and its transfer into an independent new work by way of sampling falls, in the opinion of the Senate, under the term „pastiche“. This means that acts of use from 7.6.2021 onwards are now again considered legally permissible (4).
The never-ending story
With regard to the new third time period and the law to be applied to it, the OLG has again allowed the appeal. In fact, the legal dispute has now landed for the fifth time at the BGH (5) which has now passed on the challenge cup and once again submitted a preliminary ruling request to the ECJ.
It is uncertain what the outcome will be. One thing is certain, however: the never-ending story of „Metal auf Metall“ continues.
1) BVerfG, 1 BvR 1585/13 (31.5.2016)
2) ECJ, C-476/17 (29.7.2019)
3) LB Berlin, 15 O 551/19 (2.11.2021)
4) OLG Hamburg, 5 U 48/05 (28.04.2022)
5) BGH, I ZR 74/22