<\/p>\n
German synth pioneers Kraftwerk have been in a decades-long dispute with producer Moses Pelham over whether using a sample in music constitutes pastiche under copyright exemptions, which would free the producer from requiring permission.<\/p>\n
Now the CJEU has delivered a definition of pastiche which opens the door to musical artists and samplers to use material without prior permission if it represents a recognisable reference to the original.<\/p>\n
The dispute, which has been running for almost thirty years, came about after Pelham used a two-second sample of Kraftwerk\u2019s 1977 track Metall auf Metall<\/a>, modified it slightly and looped it as part of the bassline for the 1997 Sabrina Setlur song Nur Mir<\/a>.<\/p>\n Two members of Kraftwerk, Ralf Hutter and Florien Schneider, brought a suit for copyright infringement, which they initially won but was overturned on appeal. The case continued until 2016, when a court ruled in favour of Pelham and Setlur, before the CJEU overturned that ruling in 2019<\/a>.<\/p>\n This ruling meant samples would be classed as copyright infringement if taken without permission, unless the sample itself is unrecognisable. The CJEU sent the case back to the German courts, which ruled the sample could be recognised \u2013 but by this time, a change in copyright law meant the ruling could only apply between 2002 and 2021 when the law changed.<\/p>\n This change included the introduction of pastiche as a defence against copyright infringement, and the German federal court sent the case back to the CJEU for clarity on what is defined as pastiche.<\/p>\n The CJEU ruled that the term is defined by creations which evoke one or more existing works while remaining notably different, and that should engage with the original works as \u201can artistic or creative dialogue\u201d.<\/p>\n It clarified that this dialogue can be defined in broad terms \u2013 from critical or satirical through to a tribute \u2013 provide it is recognisable as such. As the sample on Nur Mir is modified and used in a different genre of music from Kraftwerk\u2019s original, the court noted, it is recognisably alluding to the original track.<\/p>\n Announcing its decision, the court said: \u201cIn order for a finding to be made that use is \u2018for the purpose\u2019 of pastiche, it is sufficient that the \u2018pastiche\u2019 nature be recognisable for a person who is familiar with the existing work from which the elements have been borrowed.<\/p>\n \u201cA finding that the user intended to use the work for that purpose is therefore not necessary. The Court notes that that interpretation of the exception for \u2018pastiche\u2019 ensures a fair balance between the protection of the freedom of the arts and copyright protection, as well as legal certainty.\u201d<\/p>\n The matter will now return to the federal courts for them to rule on the post-2021 usage issue.<\/p>\n