Moses Pelham vs. Kraftwerk

In the long-running legal dispute between Moses Pelham and Kraftwerk, the Federal Court of Justice (BGH) has referred questions to the Court of Justice of the European Union (EuGH) concerning the infringement of the rights of the sound recording producer through sampling.

Moses Pelham and Kraftwerk have now been in dispute for more than a decade over a tone sequence from the musical piece "Metall auf Metall" by Kraftwerk. The sequence was sampled in the song "Nur mir" by Sabrina Setlur and provided as a continuous repetition.

Most recently, the Federal Constitutional Court (BVerfG) referred the matter back to the Federal Court of Justice (BGH). It took the view that the decisions of the lower courts violated Moses Pelham & Co. in their constitutionally guaranteed freedom of artistic expression (see our news).

Before the Federal Court of Justice (BGH), Moses Pelham and his colleagues continue to pursue the dismissal of Kraftwerk's action.

Court of Justice of the European Union (EuGH) to decide on the admissibility of sound recording sampling

By order dated 01.06.2017 – I ZR 115/16 (Press release 86/2017) the Federal Court of Justice (BGH) stayed the proceedings and referred several questions to the Court of Justice of the European Union (EuGH).

The Court of Justice of the European Union (EuGH) must now decide, among other things, whether Moses Pelham & Co. infringed the rights of Kraftwerk as sound recording producer through the sampling of the tone sequence, and whether this infringement may be justified by national regulations – in this case the right of free use.

In the event that Moses Pelham cannot rely on the right of free use, the Court of Justice of the European Union (EuGH) is to state whether recourse to the right of quotation is possible.

Finally, the Court of Justice of the European Union (EuGH) is to comment on the extent to which the fundamental rights of the EU Charter of Fundamental Rights are to be taken into account.

Conclusion

After more than ten years, the legal dispute between Moses Pelham and Kraftwerk is still not at an end. It remains to be seen whether the Court of Justice of the European Union (EuGH) will assess the sound recording sampling as an infringement of the rights of Kraftwerk. Subsequently, it would have to be clarified whether an independent work has thereby been created in free use.