The “bang-bang-bang-bang” dispute enters the next round

It is about the limits of artistic freedom and copyright: a legal dispute lasting more than twenty years between electro-pop pioneers Kraftwerk and music producer Moses Pelham over a two-second sound sequence is once again brought before the European Court of Justice (ECJ).

The Federal Court of Justice (BGH) in Germany suspended the proceedings there on Thursday (case I ZR 74/22). The judges in Luxembourg must decide, among other things, what exactly is meant by a pastiche. That is still completely unclear, according to chairman Thomas Koch.

Since the implementation of EU law into German law, copyright law states: “The reproduction, distribution and public reproduction of a published work for the purposes of caricature, parody and pastiche is permitted.” Although caricature and parody are well-known terms in German, pastiche is rarely used. Generally, the term means the imitation of artists’ style or ideas.

However, it is questionable whether, for example, restrictive criteria such as the requirement of humor, style imitation or tribute apply, Koch explains. In French law, for example, humorous intention plays a role. A second question concerns whether one must be able to establish that someone deliberately wanted to create a pastiche – or whether ‘recognizability of the character as a pastiche’ is sufficient.

The background to the dispute is a case that an entire industry is pursuing because of the fundamental questions about the relationship between artistic freedom and copyright protection: Pelham had a rhythm from the 1977 Kraftwerkpiece “Metall auf Metall” – essentially “Bang-dänge -däng -däng” – 20 years later, slightly slowed down and placed in an endless loop under the song “Nur mir” with rapper Sabrina Setlur. Such a musical interpretation in a new context is called sampling. It is common in rap and hip hop.

However, Pelham, now 52, ​​did not ask for permission. The Frankfurt resident came across the beat in a sound archive and was fascinated by its ‘musical coldness’, as he once said. Kraftwerk co-founder Ralf Hütter – now 77 years old and recently attending the group’s only concert in Germany this year, in Karlsruhe of all places, where the Federal Court of Justice is also located – felt robbed and accused.

The procedure went through the court: only the BGH has now announced its fifth ruling. In addition to the Court of Justice, the Federal Constitutional Court is also involved. “This is about fundamental issues,” Pelham’s representative Matthias Siegmann said during the hearing in early June. That’s why time doesn’t matter.

Recently, the Hamburg High Court (OLG) ruled in favor of the plaintiffs, among other things, because they can claim damages for a period of approximately 18.5 years. For the period after June 7, 2021 – when the implementation of EU law into German law came into effect – the court dismissed the lawsuit. It was assumed that the reproduction of the sound sequence from “Metal on Metal” and its transfer into an independent new work through sampling would now be permitted as a pastiche. However, the OLG upheld the appeal for this period, so it now went to the BGH.

According to Koch, the Karlsruhe judges are also in favor of a relatively broad interpretation of the concept of pastiche. Otherwise, artistic freedom could not be protected if works are not caricatures or parodies, the president explained. “It’s about much more than just copyright approval of sampling.” There is no period within which the ECJ must comment on this. Only when the answers are available will the BGH negotiate further. (sda/dpa)