On December 13th a court ruled in Kraftwerk’s favour following a 12 year legal dispute over a two-second sample of their music, which was used without permission by composers Moses Pelham & Martin Haas, in a case that could have potentially serious ramifications on the future of sampling, The Economist report.
Kraftwerk’s Metall auf Metall, released in 1977, features a short percussive phrase that was sampled on Pelham & Haas’ Nur Mir, featuring rapper Sabrina Setlur, in 1997. In 2004, following an initial dispute, the Hamburg lower court ruled in Kraftwerk’s favour, forbidding further distribution of Nur Mir, but two years later the Hamburg higher court reversed this decision. However, it allowed an appeal to the Supreme Court, which after two more years of legal wrangling referred it back to Hamburg.
The Supreme Court ruled that it would only be permissible to use a sample if the artists could not reasonably reproduce the sound themselves. Various witnesses demonstrated in court that, in the case of Pelham & Maas, it woud have been possible to reproduce this sound with the technology of the time, using clanging metal and a 1996 Akai sampler to illustrate.
In its aural judgement on the latest appeal, the Supreme Court said that the sampling artist would need to persuade the average consumer that their imitation was good enough. Udo Kornmeier, lawyer for Pelham & Haas, argued that this judgement was flawed. “How can you be sure that the artist has succeeded before the work has been released to the consumer?”
Kornmeier also expressed concerns that the judgement could potentially inhibit the practice of sampling completely, and not just in music – photo collage and written satire could suffer as a result. If Pelham & Haas decide to invoke Article 5 of the German constitution, which deals with artistic freedom, they may take this argument to the Federal Constitutional Court, and the case may go on even longer.
The development of house and hip hop has foundations in sampling, and as Kornmeier states, this ruling could outlaw the practise entirely. As FACT point out, “[t]he case opens up all sorts of cans of worms. There are clearly big practical problems to navigate: how does one go about realistically demonstrating that they can achieve a particular sound without recourse to sampling? Moreover, who judges whether an imitation of a sound is sufficiently convincing?”
In 2012, with music itself having less and less value as a product and more as a calling card for the artist, will the ruling matter? It is unlikely that the case will stop the flagrant disregard for copyright laws that already appears on free tracks, mixtapes and bootlegs released online, not to mention the dubious legality of many limited-run physical releases.