Opinion: Kraftwerk decision - a verdict for artistic freedom

Moses Pelham's appeal against multiple earlier verdicts has been successful. The matter of dispute: two seconds of beat. After over a decade of litigation between Pelham and electro pop pioneers Kraftwerk, it appears now that sampling - the use of musical material in a new context - is not only common practice in pop, rap and hip hop music; it is also legal.

There are two caveats, however: Germany's highest court, the Bundesverfassungsgericht in Karlsruhe, ruled that the case must be re-decided. Further, it declared that sampling could potentially incur a fee, should such a law be passed. And, with copyright law having been harmonized throughout the European Union since 2002, the justices recommended that the issue be brought before the European Court.

In this, the court overturned another court's verdict from 2012, saying that the earlier decision had not adequately taken the issue of artistic freedom into account.

Kraftwerk's two seconds, said court vice-president Ferdinand Kirchhof, were not sufficient to warrant copyright protection. Pelham had used the beat to underlie a complete song without asking Kraftwerk for permission. In doing so, said the court, he'd created an autonomous work of art, and Kraftwerk's property rights had neither been infringed upon nor its financial interests impaired. Prohibiting this, said Kirchhof, would "to all intents and purposes prohibit the creation of musical pieces of a particular style."

Less work for lawyers and courts

This is good news for several reasons. Any other verdict would not only have stifled creativity, it would have led to endless court cases in matters that are difficult, at best, to determine: Where does one artist's originality end, and where does the other's begin? Now, it would seem, the borderline between the two does not have to be determined and re-determined case-to-case.

A few years ago, the inventors of the touch-tone telephone in the 1960s in the US declared they would litigate to have the succession of tones constituted by a dialed number declared a melody to which property rights were owned. In result, every telephone number selected by every person in the world would incur a fee to be paid to royalty collection societies. Whether meant seriously or as a joke, the idea pointed to the nearly absurd level of litigation prevalent in today's society.

They all did it - and still do

The four-note sequence opening Beethoven's Fifth Symphony - ta-ta-ta-TAAHH - has been called the first riff in music history, used hundreds of times by later composers in every music genre.

Technically, that use was, for the most part, legally undisputed because in most instances, the composer had been dead for over 70 years, and the motif had meanwhile entered the public domain. "Roll over Beethoven?" It didn't matter.

But in fact, for centuries - indeed, throughout music history - one composer quoting another was not an issue of irritation or infringed rights. Instead, it was one artist's way of paying homage to another. The originator of musical material did not have to be asked for permission, and if he was still alive, he was likely to be flattered, not miffed. Not just musical motifs were passed around; rhythms, harmonic progressions and tone colors were avidly copied or imitated - without anyone having to worry about the distinction between the two or leaving it to a third party to decide where to lay the border.

The result of all that "plagiarism?": An explosion of musical creativity without which the Occidental music tradition would be only a shadow of its actual self.

Bach adapted Vivaldi, and the result was a magnificent organ piece. Beethoven quoted Mozart, turning a melody from "The Magic Flute" into wonderful variations for cello and piano. In the opera "Parsifal," Wagner referenced a melody from Mendelssohn's "Reformation Symphony." Mendelssohn hadn't thought up that tone sequence himself though; he'd used a traditional church melody, the "Dresden Amen" - not because he was lazy, but because of the message he wanted to convey. Mauricio Kagel quoted a tune from Brahms, who in turn had lifted that same motif from Handel - and if we know Handel, he probably got it somewhere else too.

By these standards, the appropriation of Kraftwerk's two seconds is less than a trifle. Who would want to live in a world where such a thing is prohibited by law? Or one where artists are intimidated into worrying when something might be regarded as a copy, or that non-artists, i.e., judges or lawmakers, will be the ones to determine where the border lies? I wouldn't.

The musicians of Kraftwerk have rightly been called pioneers. By all accounts, the band is one of the most influential in the past four decades. A legion of artists has declared them an inspiration. Had ultra-restrictive property rights been in effect earlier, even modern music history might have suffered.

This doesn't mean that the German Constitutional Court has opened the door to plagiarism. But its decision does display basic common sense.

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