In 1977, the German band Kraftwerk released the album Trans Europa Express, which contained the track Metall auf Metal. Twenty years later, producer Moses Pelham used a two-second loop from that song in a track entitled Nur Mir by artist Sabrina Setlur.

Two years later, in 1999, members of Kraftwerk filed a copyright infringement lawsuit against Pelham in the Hamburg Regional Court. It was the first salvo in what would become one of the longest-running copyright infringement cases in history.

However, a recent decision by the European Court of Justice (ECJ) may have finally brought an end to the case. After more than 25 years of legal wrangling, the court ruled in favor of Pelham, finding that his use of the loop was protected under the “pastiche” exemption in European copyright law.

Though the case will likely be an important precedent when it comes to music sampling in the EU, it’s a case that is older than this site and many of the people who read it.

But this raises a simple question: Why did this dispute take so long? Nearly 30 years after the allegedly infringing song was released, we are just now getting what feels like a final answer.

The answer is complicated, but much of it has to do with a combination of the European legal system and and EU copyright law.

A VERY Brief History of the Case

Sbarina Setlur released her Pelham-produced song Nur Mir in 1997. Two years later, members of Kraftwerk filed a copyright infringement lawsuit against Pelham, alleging that the song used a two-second loop from their earlier song without permission.

Initially, the case seemed to favor Kraftwerk, with German courts largely agreeing that Pelham’s use was a copyright infringement.

However, the case was repeatedly appealed and the initial rulings would be overturned and modified multiple times.

In 2016, seventeen years after the case began, it made it to the ECJ for the first time.There, the court ruled in favor of Kraftwerk, overturning a lower court decision favoring Pelham.

However, the ruling was not a complete victory for the band. The court ruled that Pelham’s use of the loop still could be considered non-infringing so long as it was “unrecognizable” when compared to the original. This kicked it back to the lower courts, which did eventually rule that it was recognizable and, therefore, an infringement.

However, by this point, a new law had been introduced in the EU that crated a defense for “pastiche.”Though the 2002-2021 usage was still determined to be an infringement, the question was open about the post-2021 usage.

So, the case went back to the ECJ, which this time ruled in favor of Pelham, finding that the sample qualified as pastiche and, therefore, was not an infringement.

Technically, the case is still ongoing. This decision sends the case back to the lower courts, but the ruling seems to be definitive and there are likely no further questions to be answered.

Why Did it Take So Long?

There are multiple reasons why this case took as long as it did. The first and most obvious is simply that there are more layers in the EU legal system. Not only do you have the national courts, but you have the EU layer, in particular the ECJ.

More layers means more opportunities to appeal and more opportunities to appeal means more delay. That much is fairly straightforward.

However, another issue is the nature of copyright law in the EU, in particular in Germany. In the United States, we have a fairly broad and open exemption to copyright known as fair use. Fair use is meant to be a flexible standard that covers a wide variety of potentially.

Germany, by contrast, doesn’t have that. Instead, the country uses a much more narrow carve out for specific behaviors, such as the “right to quote”. Sampling was simply not addressed by these exceptions. It wasn’t until 2021 than the country added pastiches and parodies as protected uses of copyrighted material.

On one hand, this made the case more simple. Fewer exemptions mean less to debate. However, since the law didn’t address this kind of use, it opened the door for more arguments on both sides.

As a result of a combination of these factors, the case essentially made two round trips through the EU/German legal system. That’s fairly rare in any jurisdiction and it extended this already long-running case by nearly another decade.

All in all, the case is an outlier for many different reasons. However, not it appears to be finally over.

Bottom Line

So who ultimately won the case? Though the headlines loudly state that this is a victory for Pelham, which it is, a bigger picture view of the case presents a mixed bag. Yes, Pelham won the post-2021 usages and established this kind of sampling as pastiche in the EU, but he still lost on the pre-2021 usage.

This may be the first example of a pyrrhic draw. This case went on for nearly three decades and there’s pretty much no way the outcome justifies it for either side.

That said, other artists in the EU, in particular those who use samples in music, should probably be grateful that they did. Whether you agree with the decision or not, we now have more clarity about pastiche and sampling in the EU. That will make things easier for potential litigants down the road.

But that’s kind of how precedent work. The vast, vast majority of the time, the sensible path is to simply settle the case. Avoiding the cost, time and headache of litigation is almost always a better move than rolling the dice in court.

But, while settlements may create social norms, they don’t create legal precedent. Without precedent, every case with a similar set of facts is basically starting from scratch.

So, while this case is definitely an outlier, it will likely help future artists and rightsholders make more sense of the relevant copyright laws.

Header Image: Andriy V. Makukha, CC BY-SA 3.0, via Wikimedia Commons