How a two-second Kraftwerk drum loop became the test case for EU sampling law

After twenty-nine years, a two-second drum loop and enough litigation to fill a small library, Kraftwerk have lost the decisive round in their copyright dispute with Moses Pelham. The European Court of Justice handed down its ruling on 14 April, and while the case now returns to Germany’s Federal Court of Justice for its final chapter, the direction of travel is set. Sampling, under certain conditions, can qualify as pastiche. And pastiche, under recent EU copyright reform, is permitted without prior authorisation.

The specifics will be familiar to anyone who has spent time around the machinery of electronic music. The sample at the heart of the case is a brief, slowed-down drum sequence lifted from Metall auf Metall, released on Trans-Europa Express in 1977. The track Pelham produced using it was Nur Mir, recorded by German rapper Sabrina Setlur in 1997. No permission was sought. Kraftwerk’s Ralf Hütter, along with the late Florian Schneider-Esleben, took the view that the sample had been taken, and litigation followed in the late 1990s. The case has since passed through the Hamburg courts, Germany’s Federal Court of Justice twice over, the Federal Constitutional Court and the ECJ on two separate occasions.

An earlier ECJ ruling in 2019 went Kraftwerk’s way, holding that sampling without consent was in principle an infringement. What has changed since is the law itself. In June 2021, Germany implemented the EU’s Digital Single Market Directive through a reform of its copyright statute, introducing §51a UrhG, which permits reproduction for the purposes of caricature, parody and pastiche. The Federal Court of Justice, faced with deciding whether Nur Mir could shelter under the new exception, referred the definition of pastiche back to Luxembourg.

The court’s answer is the substance of this ruling. Pastiche, the judges held, applies to new works that draw on one or more pre-existing sources while remaining clearly distinct from them, and which do so in order to engage those sources in an artistic exchange that is itself identifiable. That exchange can take the form of stylistic imitation, tribute, or humorous or critical response. The evidentiary bar is set at recognition: a listener familiar with the original needs to be able to identify its presence in the new work. That is meaningfully lower than the parody test, which requires humour or mockery.

What the court did not do matters as much as what it did. It has not declared pastiche a free-for-all, and it has not collapsed the distinction between borrowing and infringement. The new work has to do something with the source, something that constitutes creative conversation rather than mere use.

The case now returns to Germany’s Federal Court of Justice, which must apply the new threshold to Nur Mir. That determination will be technical rather than dramatic. German courts have already found, in earlier stages of the dispute, that the Pelham production engages artistically with Metall auf Metall, sits in a different genre and remains identifiable despite the change of tempo and modulation. On the ECJ’s reading, that sounds very much like pastiche. The ruling cannot be appealed.

For the wider industry, several things follow. The pastiche exception is now a live defence in a way it was not before, and producers working under the Digital Single Market Directive will need to understand how it is being read. The test is contextual: what qualifies depends on what the new work does with the source, not on duration. The two-second threshold that has haunted sampling discourse since the early 1990s is not the operative question. Clearance remains the safer commercial route, particularly where the source rights holder is as determined as Kraftwerk have been. Pastiche is a defence, not a workflow.

There is something fitting about Kraftwerk being the losing party here. The band who industrialised the template that hip hop, techno, house and everything downstream would go on to sample have spent three decades arguing that their own work should not be available on the same terms. That is a considerable legacy for a two-second drum loop.

by Damion Pell

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