The dispute began in 1997, when Kraftwerk's Ralf Hütter sued Frankfurt hip-hop producer Moses Pelham over a two-second drum sample of “Metall auf Metall” from Trans-Europe Express on rapper Sabrina Setlur's song “Nur Mir.”
In 2012, Germany's Federal Court of Justice sided with Hütter, ruling that Setlur's song could no longer be promoted because it infringed on Kraftwerk's intellectual property, especially because Pelham had the means to make the same sounds himself. The defense attorney then appealed to the German constitutional court alleging that the injunction amounted to an infringement on artistic freedom. Finally, 19 years on, the country's highest court has made a decision.
According to AFP, the court said: if the impact on the usage rights of the intellectual property owner is "negligible, then artistic freedom overrides the interest of the owner of the copyright." So long as the new composition does not compete directly with the sampled work and it does not financially harm the right holders, sampling is allowed.
The court recognized that sampling is a "style-defining element" of hip-hop and blocking Pelham's use would practically outlaw the genre, thus overturning the Federal Court's decision. Composers, the constitutional court argued, should be allowed to create works without financial risks or restrictions in the creative process.
Before the court's decision, German Federal Union of the Music Industry director Florian Druecke said that the notion that "artistic freedom trumps everything" represents a slippery slope. Such a position, he said, "would be grist to the mill for those who claim that everything should be allowed on the internet."
Kraftwerk is a peculiar band to take up this fight. Their music forms some of the early blueprints of hip-hop and has been sampled innumerably. And besides that, they're robots. You'd think they'd be into digital reproduction.
While the case is German, and represents a significant precedent in the relationship between intellectual property and artistic freedom there, don't think other constitutional courts worldwide aren't paying attention.