1 June 2016Copyright

Kraftwerk loses copyright case in Germany

German electronic band Kraftwerk has lost a copyright infringement dispute at the Federal Constitutional Court of Germany.

The case centres on rap artist Moses Pelham who allegedly used a sample of Kraftwerk’s music that infringed the band’s intellectual property rights.

The sample, a short looped drum sequence, was from Kraftwerk’s song “Metal on Metal”, released in 1977.

Pelham’s track is called “Nur mir” (Only Mine) and is performed by Sabrina Setlur.

But in a ruling handed down yesterday, May 31, the court found in favour of Pelham and said that any negative effect on Kraftwerk did not outweigh artistic freedom.

Kraftwerk was founded by Ralf Hütter and Florian Schneider in 1970. The band uses repetitive rhythms and computer speech software.

An earlier ruling in 2012 handed down by the Federal Court of Justice went in favour of the band but yesterday’s ruling overturned that decision.

Jens Matthes, partner at Allen & Overy, said the case results from the "interplay between art and economics".

"In this case the sample was only about two seconds, but then again the whole Kraftwerk piece from which it had been taken is less than two minutes, which brings us to the well-known rule that law is not about maths and exact measures, but about valuation."

He added: "There is always a balance to be made between freedom to copy and thus encourage development and improvement, and protection of those who created developments and improvements–you will never get this balance perfectly right, but as long as we think and discuss openly and thoroughly about this balance, our society is in good shape."

Stefan Völker, partner at Gleiss Lutz, added: "The decision outlines how both rights have to be weighed and arrives at a reasonable conclusion. As in previous cases, the court accords the freedom of artistic expression a very broad scope of protection."

The constitutional court has now referred the case back to the federal court for it to reassess the case.The federal court will look at whether Kraftwerk suffered economic damage from the sampling.

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