Krafwerk sample found not to infringe

December 2008

Music Publishing

Germany ‘s highest civil court has held that sampling musical notes does not always, in principle, violate copyright, asking that the decision of a lower Hamburg court be reconsidered. The lower court had held that German rap producer Moses Pelham, who used an uncleared two-second sample from Kraftwerk’s 1977 track ‘Metal On Metal’ in the rhythm sequence of the 1997 Sabrina Setlur song ‘Nur Mir’ had infringed the copyright in the song (rather than the sound recording). The new ruling finds that whilst sampling a melody does constitute infringement, the use of ‘notes’ in a recording in such a way that the original melody is not identifiable – which was arguably the case in ‘Nur Mir’ – does not infringe. The higher court decision means the Hamburg court will now have to reconsider the Kraftwerk case again. This decision is similar to the conclusion reached by the US courts in Newton v Diamond (2003) where it was held that the Beastie Boys had not infringed the copyright in the melody of a composition by James Newton as the use was not substantial. As the Beastie Boys had secured a licence to use the sound recording, no action could be brought.;_ylt=Ap3QE3xrQY2BjMA5V9kDR_SVEhkF

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