by carl wilson

I hate to side against Kraftwerk, but ...


Germany moves closer to justice on sampling than most legal systems have so far, in a decision against Kraftwerk, who were suing a rap producer for using two seconds of their song "Metal on Metal" (from 1977's Trans-Europe Express).

The court errs in banning quotation from melodies - are German jazz soloists in trouble now? - and indeed I'd be curious what their definition of a "melody" is. Do they mean vocal melodies only? What about instrumental hooks? What about rhythmic hooks? I'm curious if the ruling includes any guidelines in those directions. Personally, the only two tests I would advocate are (a) that the use must be substantially transformative of the source material, by whatever means; and (b) that the source material be credited. I realize licensing fees have been good for some under-appreciated artists, but the censoring effect has been greater - just ask Public Enemy, whose work has never been as powerful as it was in the sampling age. Conscientious artists could still donate profits from sales on songs where they sample deserving obscurities (and acknowledgements would permit those obscurities to pressure with public shaming of the non-conscientious). Meanwhile, if the original artist felt that someone had just ripped them off, not really created a new work, they could sue to make that case.

Does anyone know of anywhere else that explicitly has liberal sampling laws, rather than just weak copyright regimes because they're poor and it's not a priority? I know Gilberto Gil was trying as Culture Minister in Brazil, but as far as I can tell what's been done there is only to allow artists to use Creative Commons if they choose to. They haven't made the leap that Germany made today, where sampling artists would be innocent until proven guilty.

General | Posted by zoilus on Thursday, November 20 at 6:04 PM | Linking Posts | Comments (5)



I think whether or not the work is substantially different from the original will become the main test case in Germany if the ruling is upheld and applied to other disputes (melody or not).

The German courts did not rule that sampling is legal or fair use (as some US coverage of the case suggests). It did rule that generally permission needs to be obtained even when using "smallest sound bites". However, the court ruled that one can abstain from asking for permission if the tone sequence is built into a new and clearly different works.

In theory the UK courts could go the same way because the Copyright Designs and Patents Act 1988 established that a 'substantial part' of the copyrighted work must be used in order to constitute infringement. In the case of sampling case law indicates that a ‘substantial part’ may be as short as 7.5 seconds (Produce Records Ltd vs BMG Entertainment Ltd 1999). However, the sample is considered ‘substantial’ by reference to its quality rather than its length. If it is recognisable, however short, as coming from the original piece of music or recording then it will be regarded as being substantial.

The ruling is certainly encouraging (and common sense), and one would hope that it will encourage courts in other European countries to make originality and similarity the test case when considering whether a sample infringes copyright.

Posted by Saskia on November 24, 2008 9:26 PM



Those are both fair points but, to me, Chuck D's decline as a lyricist is he ost important factor. Maybe decine is too strong a word but stagnation definitely. So, by the time they got past Fear of a Black Planet, PE (and Chuck especially) sounded dated especially compared to what took over (Dre, Snoop, Nas, Biggie, Pac, etc.). Of course these two issues (instrumentals and lyrics) are not really as detached and distinct as I'm saying here.

Posted by Graham Preston on November 23, 2008 5:44 PM



Not to belabor the contiguous factors in PE's downfall but here are a couple of interesting ones. With legal sampling priced out of most artists budget, sampling in the bling era (arguably ushered in by P. Diddy) became a signifier, not of mixing skills as it once was, but of wealth and success. Ie the longer the sample, the bigger the income. The other factor was the shifting of popular hip-hop towards virtuoso MCs, a trend that demanded simpler, and melodically defined bedtracks resulting in songs that resemble, ironically enough, early hip hop staples like Planet Rock, with its long form quoting of Kraftwerk.

That said, while the outcome is nice, I think cases like this are the anomaly these days. Copyright reform will not be fought through cases like this because renegade sampling is such a part of marketing. Most musicians (and labels) being sampled have the sense to let their dead back catalog be animated by its presence in a club/internet track. Kraftwerk is a notoriously weird operation so let's call this an exception to the current state of copyright battles which are wholly, 100%, focused on punishing downloaders.

My gut feeling is that will even wane soon when companies accept that downloading is also promotion and that recordings, despite the last 30 years of misconception, are just promotional items.

This long ago stopped being an artist-focused issue and became a trade war between company and consumer.

Posted by Brian on November 21, 2008 12:38 PM



For sure - mainly to the fact that they were under such pressure (see under Sister Souljah) that all their personal problems sharpened and the group splintered - but the neutering of the Bomb Squad sonically I think *does* have to do with it. If the music had stayed sharp enough they might have gotten through that rocky period.

Posted by zoilus on November 21, 2008 12:25 AM



Really good little post here, Carl. The decision seems to make sense and also fit what most of us (I assume) would think reasonable. But I'd chalk the fall of Public Enemy to much more than just their inability to sample as freely and creatively as before.

Posted by Graham Preston on November 20, 2008 10:37 PM




Zoilus by Carl Wilson