Moses Pelham vs. Kraftwerk – Update

The dispute between Moses Pelham and Kraftwerk concerning the permissibility of sound recording sampling proceeds to the next round. The Federal Court of Justice (BGH) has decided the conditions under which the rights of the sound recording manufacturer are infringed by sampling.

Moses Pelham and Kraftwerk have been in dispute for over 20 years over a 2-second sound sequence from Kraftwerk's song "Metall auf Metall", which is over 40 years old. Moses Pelham used this audio snippet as a continuous sequence in the song "Nur mir" by Sabrina Setlur, which Kraftwerk apparently did not like at all. Since then, there has been a dispute as to whether this was permissible under copyright law or not.

The legal dispute has meanwhile gone through all instances and most recently also occupied the Court of Justice of the European Union (EuGH) (our article on this subject). The Federal Court of Justice (BGH) was now permitted to decide in the case once again.

Decision of the Federal Court of Justice (BGH) in Moses Pelham vs. Kraftwerk – No Final Decision

By judgment of 30.04.2020, the Federal Court of Justice (BGH) (Press Release 46/2020 of 30.04.2020) set aside the first appellate judgment and referred the matter back to the Higher Regional Court (OLG) for reconsideration. According to the Federal Court of Justice (BGH), the claims asserted by Kraftwerk cannot be granted either with respect to the manufacture or with respect to the placing into circulation of sound recordings, based on the reasoning provided by the Higher Regional Court (OLG).

Copyright Directive Decisive

The Federal Court of Justice (BGH) distinguished between reproductions before 22.12.2002 and after 22.12.2002. The reason for this is the applicability of the Copyright Directive (Directive 2001/29/EG) since 22.12.2002.

With respect to the acts of reproduction before 22.12.2002, the Federal Court of Justice (BGH) held that the requirements for free use should be met, since the rhythm sequence taken by Pelham was not a melody.

With respect to the acts of reproduction after 22.12.2002, a infringement of Kraftwerk's reproduction right could be considered. Since the Copyright Directive has been in effect, the right of the sound recording manufacturer must be interpreted in accordance with the directive. According to the Court of Justice of the European Union (EuGH), the taking of two bars of a rhythm sequence from Kraftwerk and transfer to Pelham's sound recording constitutes a reproduction. Although the audio fragment was incorporated into the new sound recording in a slightly modified but still recognisable form when heard. Pelham cannot rely on free use, as this national provision is not compatible with Union law.

However, a final assessment was not possible for the Federal Court of Justice (BGH). The Higher Regional Court (OLG) has made no findings as to whether Pelham performed acts of reproduction or distribution before 22.12.2002 or whether such acts were to be expected. The Higher Regional Court (OLG) will have to make the corresponding findings in the newly opened proceedings.

No Infringement of the Right of Distribution

The Federal Court of Justice (BGH) has ruled out an infringement of Kraftwerk's right of distribution as a sound recording manufacturer with respect to the placing into circulation. According to the Court of Justice of the European Union (EuGH), a sound recording containing a music fragment of another sound recording does not constitute a copy of that sound recording. At most, there could be an infringement of Kraftwerk's reproduction right as a sound recording manufacturer.

Overall, the Federal Court of Justice (BGH) was not able to make a final decision. The Higher Regional Court (OLG) will have to make further findings.

Notes

The Federal Court of Justice (BGH) has pointed out that the same applies to Kraftwerk's related right as a performer as applies to the related right as a sound recording manufacturer.

With regard to claims under copyright, the Federal Court of Justice (BGH) already questions the existence of acopyright protected work in the form of the sound sequence. In any case, Pelham may rely on the right of free use for all acts of use before 22.12.2002.

The Federal Court of Justice (BGH) considered claims based on competition law related rights to be rather remote.

Conclusion

The legal dispute between Moses Pelham and Kraftwerk is not yet over. The Higher Regional Court (OLG) will now make further findings and must decide again. However, the Federal Court of Justice (BGH) provides extensive guidance. With respect to acts of use before 22.12.2002, Pelham may rely on the right of free use. Whether the sound sequence was subsequently used or whether there was an intent to do so will still have to be determined by the Higher Regional Court (OLG). This also applies to the infringement of the right of distribution as a sound recording manufacturer and the related right as a performer.