German Supreme Court Backs Sampling in Kraftwerk Case

Peter Boettcher

A landmark ruling could allow the sampling of copyright-protected material without permission.

In a landmark ruling, the German Supreme Court has said unauthorized sampling of copyright-protected material for music tracks may be legal.

The court on Tuesday overturned a lower-court ruling banning "Nur Mir," a 1997 hit single from German rapper Sabrina Setlur and producer Moses Pelham that used a two-second looped sample from the 1977 song "Metall auf Metall" by pioneering German electronic music act Kraftwerk. Pelham used the sample without permission.

The court said the original ruling did not give sufficient weight to the importance of artistic freedom.

The lower court will now reconsider the case, which has been working its way through the German system for more than a decade now. You can compare the tracks below.

The ruling is a victory for Pelham, known as Moses P., who has always argued that the strict interpretation of copyright law would kill the art of hip-hop, which relies heavily on sampling.

“I’m relieved, I’m very happy with the decision,” Pelham told German television after the ruling. “For the future development of art it is a very important ruling.”

Explaining the Supreme Court decision, Court Vice President Ferdinand Kirchhof said Pelham and Setlur had used the Kraftwerk sample to create “a completely new and independent work of art” without “lessening the potential of the original (Kraftwerk) recording.”

While the ruling does not change German law, and unlimited sampling remains illegal, the decision marks a shift in the court’s interpretation of copyright in a way that could open the door to more widespread, unauthorized sampling. For future cases, the courts must give full consideration of existing laws on artistic freedom.

Noting that the European Union is moving to harmonize copyright law across Europe, the German Supreme Court suggested that the Kraftwerk/Moses P. case should actually be sent to the European Supreme Court for a final decision.