The copyright rules around sampling recordings in Europe have just changed thanks to a new ruling in a legal dispute that’s been rumbling on for more than two decades, between German music producer Moses Pelham and the mighty Kraftwerk.
That dispute relates to Pelham’s 1997 track ‘Nur Mir’ - which sampled Kraftwerk’s 1977 classic ‘Metal On Metal’ - and centres on this all important question: do you need permission if you sample a tiny snippet of another track when making a new track?
A previous ruling in this dispute from 2019 gave us a nice clear answer: “yes”. But a new ruling has moved us over to a “maybe”. Which in theory is good news for anyone putting samples into their recordings, in that if you don’t need permission to sample, you don’t need to find the copyright owner of the track you’re sampling from, or pay them a fee, or share the new copyright in your finished work with them.
Although utilising that ‘maybe’ get out requires demonstrating that your sampling qualifies as a ‘pastiche’. And while EU judges have provided us with a legal definition of pastiche, it’s a sufficiently waffly definition that whoever owns the copyright in the track you sampled may still have a case for going legal, if they're pissed off that the sample was taken without permission.
After years of legal wrangling in the German courts, judges in the EU ruled in 2019 that, when it comes to the sound recording (rather than the composition), even a tiny sample - like the tiny snippet of ‘Metal On Metal’ used in ‘Nur Mir’ - could constitute copyright infringement, unless the snippet that has been sampled is altered beyond recognition in the new track.
Which means anyone using a tiny sample of an existing recording in a new track within Europe likely needed to negotiate a licence with the owner of the copyright in the sampled track. This is different to the US, where the courts have long taken a ‘maybe’ approach to the question of whether or not samples need to be cleared, usually because of the good old fair use principle.
However, also in 2019, a new EU copyright directive was passed which, for the first time, said that copyright systems across Europe should include a copyright exception covering pastiche, so that if a third party makes use of another person’s work for the purposes of pastiche, they don’t need to get permission from the owner of the original work.
That prompted a new phase of the ‘Metal On Metal’ sample case, because now lawyers on the Pelham side argued that a sample was pastiche and therefore covered by that exception. Which would mean no permission was required to sample the Kraftwerk track.
Given the directive simply says EU copyright systems should include an exception for “caricature, parody and pastiche”, without any information on what that means, the Court Of Justice of the EU was then asked to define what exactly pastiche means in the context of European copyright law.
In their ruling yesterday, and citing an advocate general who issued an opinion on this dispute last year, EU judges note that pastiche is a word that is “rarely used in everyday language”.
It’s also one of those words that we all know but might struggle to define if put on the spot. For what it’s worth, the Merriam Webster dictionary says a pastiche is a creative work that “imitates the style of previous work” or is “made up of selections from different works”.
In their ruling, the EU judges muse that pastiche is “commonly used to designate a creation in a style which imitates that of another work, artist or works belonging to the same artistic movement”, but that it “nevertheless encompasses diverse meanings”.
Some definitions might “restrict the concept of pastiche to humorous or satirical imitations”, they add, but it can also be defined more widely. And given there is a separate distinct copyright exception covering parody, which would apply to “humorous or satirical imitations”, in copyright law terms pastiche can’t be limited in that way. Otherwise it wouldn’t be necessary alongside the parody exception.
That said, the judges add, that doesn't mean there aren’t any limits on what constitutes pastiche when making use of existing creative works within new creative works - with the judges keen to stress that, legally speaking, pastiche “does not have a catch-all nature”.
So what does constitute pastiche?
Well, say the judges, “creations which evoke one or more existing works, while being noticeably different from them, and which use - including by means of sampling - some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them”.
Simple! Now we know. Or at least we know for certain that when we ask the question “do you need permission if you sample a tiny snippet of another track?”, the answer in Europe is now ‘maybe’.
As for the UK, which added a pastiche exception into copyright law in 2014 while still a member of the European Union, this week’s ruling in the EU courts may be persuasive but, post-Brexit, it’s obviously not binding. So from a UK perspective, the answer to that question is maybe maybe.