Kraftwerk versus a cheesy copycat: How did the copycat win?

The Metal on Metal sampling case explained

Kraftwerk concert 2012

Analysis Have you noticed that with copyright, the people who complain loudest and longest about how unfair it all is often the least talented? Grumbly bass players. Science fiction "novelists". Otherwise-unemployable "academics".

It's a union of the bitter and grudgeful, with a distinct talent deficit. It doesn't take much to recognise originality, but with this lot, they seem to have an Asperger's blind spot.

Not so much with patents, where the politics are more subtle and complex. Patents require bureaucratic registration, for a start, and are only really nominally an individual's property right, in reality. Great inventors like Tesla take their inventions to the grave, bypassing the patent bureaucrats altogether, while non-inventors such as patent trolls (NPEs) can extract millions in penalties.

With creative works, it only takes a modicum of originality and the law protects you against rip-offs and multinationals. You can humble the mighty – or should be able to.

Yet few law cases have illustrated this talent gap better than Kraftwerk's 19-year battle with two cheesy pop German producers. Genuine musical pioneers, Kraftwerk inspired dozens of musical genres, and had won all their legal rounds of this case in the public courts – but were defeated in Germany's constitutional court this week.

Kraftwerk founder Ralf Hutter said they were fighting on a point of principle: any damages will have been dwarfed by their legal fees. (Press release, in English)

The principle they were defending was the bedrock behind attaching exclusive property-ish rights to ideas (patents) or creations (copyright): so that potential copycats either have to innovate around the artificial barrier, or they have to trade. By and large they do. But this week's court defeat for Hutter means that copycats no longer need to do either – which is hardly a victory for "creativity" or humanity.

Permission? I'd rather not ask

Producer Moses Pelham based the entire song Nur Mir, a minor hit for Sabrina Setlur in 1997, on a sample from Kraftwerk's Metall auf Metall, a track on their 1977 album Trans Europa Express. The sample itself is only two seconds long, but repeats infinitely, giving Pelham's derivative work its character. You can compare the two here.

Kraftwerk founder Ralf Hutter first filed suit against Pehlam in 2004. The public courts sided with Kraftwerk, and in the most recent ruling in 2012, the court argued that the producer could have reproduced the distinctive drum sample himself.

The Constitutional Court had to balance rights under Article 5 (artistic freedom to do what you like) with IP rights (requiring him to trade or workaround). Pelham's lawyers advanced an absolutist argument, that any assertion of the property right imperilled his constitutionally protected artistic freedom. Remarkably, the judges agreed with Pelham – and even more remarkably, the court stated that seeking permission from the creator would make entire genres of art like hip hop impossible to make. Presumably, no hip hop producers today are capable of reproducing a sound in a studio, and none have mobile phones, or know any lawyers or bodies who can seek clearance, like they used to. Not being experts in contemporary hip hop, we can't vouch that this is the actually case.

So sharing is caring, and property is theft. It's a decision with spooky echoes advanced by the gigantic internet corporation in Dave Eggars' The Circle

Persecution complex: from a video by (who else?) Pirate Party MEP Julia Reda, paid for by you

I'm oppressed, I'm oppressed!

Fighting copyright today requires a persecution complex, because concrete examples of real oppression are fleeting and trivial. The unfairness of copyright must therefore be imagined. Copyfighters are a tool of big business, with fabulously rich multinationals such as Facebook and Google, who do little more innovative themselves than drive a white van full of bits around, using other people's stuff (professional and amateur) to harvest personal data for ad bucks. Imagine Facebook without our copyright work on it: it would be empty.

In the music industry, copyright battles flared only briefly in the late 1980s when sampling was rife, and some tracks used dozens of samples without permission. The skirmishes died down just as quickly, as producers either obtained clearance or created their own soundalike beats, which is exactly what the system was designed to do. The fun mashup craze of a decade ago came and went without a serious legal shot being fired.

Where there is friction today, it's from speculative attempts to extract cash from a hitmaker: an occupational hazard for the successful. The jury's dubious decision in the Blurred Lines plagiarism case has encouraged a rash of lawsuits – but you don't hear much about this kind of copyright law abuse from the copyfighters, strangely.

She's playing her game and you can hear them say ...

Germany's Constitutional Court noted that the sample is two seconds long, but oddly, made no examination of whether this is a significant part of the derivative work, as courts must usually do. The Constitutional Court has invited the German Supreme Court, which in 2012 sided with Hutter, to refer the case to the EU courts if it feels that the EU “fundamental right of artistic expression” is incompatible with the EU E-Commerce Directive.

This is something the Supremes will be loathe to do – they were perfectly satisfied that a sensible balance had been struck already, thanks all the same, and that the right to artistic expression was not an intellectual bunker-buster that could vapourise assertion of property rights. German courts are sober and sensible when it comes to IP issues. In this case, it's as if Russell Brand was smuggled onto the bench to declare, yes! All IP is theft.

A wiser court will have sided with Hutter and Kraftwerk, not because of their legendary status, or because the producer of the cheesy derivative is an attention-seeking crybaby, but for the reason the Supreme Court cited in 2012: IP requires that you do a deal, or workaround the problem. Don't rip someone off and then claim to be wronged. Ultimately, a culture that can only sample, quote, other people's stuff, and that produces less and less original work, is one that ultimately will have a lot more cheese, and fewer Kraftwerks.

The website Who Sampled lists more than 625 works sampling Kraftwerk original recordings. Kraftwerk haven't sued anything like 625 people; perhaps Pelham received a writ because his derivative work was such an abomination. If you can stand it – judge for yourself. ®

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