(CN) – A two-second sample of a rhythm sequence from a song by electronic music pioneer Kraftwerk constitutes copyright infringement since the sampling was done without permission from the songwriters, a European Court of Justice magistrate said Wednesday.
Kraftwerk members Ralf Hutter and Florian Schneider-Esleben sued German rapper Moses Pelham, who sampled a rhythm sequence from the 1977 Kraftwerk song “Metall auf Metall” in a song he produced for another German rapper.
In the 14 years since the Kraftwerk members sued, German courts have found copyright infringement, overturned a judgment of infringement and found the shortness of the sample to be a factor. Finally in 2017, the German court hearing the case on remand asked the European Court of Justice to weigh in on the matter.
In his advisory opinion for the EU high court, Advocate General Maciej Szpunar said the issue is simple: Sampling infringes the rights of the creator when the sample is taken without permission, regardless of its size.
Szpunar acknowledged copyright law necessarily creates a monopoly for rightsholders over their creations which restricts the freedom of expression of others. However, he said requiring artists to license the material they wish to use or sample does not unduly restrict their freedom of expression – even when the copyright holder declines the request.
The members of Kraftwerk seek “termination of the infringement, the award of damages and the surrender of the phonograms for the purpose of their destruction,” according to European Court of Justice press release on the case. The song in question, “Nur Mir” by German rapper Sabrina Setlur, came out in 1997 on an album that's sold more than 250,000 copies.
Szpunar’s opinion is not binding on the EU high court, which has begun its deliberations in the case.