The German Federal Court of Justice (BGH) ruled that sampling—a technique where artists use short clips of existing music in new works—can qualify as a pastiche under copyright law. This decision closes one chapter of a nearly 30-year legal dispute between electronic pioneers Kraftwerk and producer Moses Pelham.
The case, known as Metall auf Metall, involves a two-second rhythm loop from Kraftwerk’s 1977 track of the same name. Pelham used the loop without permission in Sabrina Setlur’s 1997 song Nur mir. The legal battle has reshaped copyright standards for sampling and similar creative practices.
Three decades, three legal eras
The conflict started in 1999 when Kraftwerk sued Pelham in Hamburg, claiming the unauthorized use violated copyright. Over the years, the case tested multiple versions of German and EU copyright law, each with different rules for reusing existing material.
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Between 1997 and December 2002, German law permitted “free use” of copyrighted material if it formed the basis of a new, independent work. After the EU’s InfoSoc Directive took effect in 2002, that provision was voided. A 2019 ruling by the European Court of Justice (ECJ) confirmed Germany’s old rule conflicted with EU law, leaving a gap until 2021. That year, Germany introduced a new exception for pastiche, parody, and caricature under § 51a of the Copyright Act.
The BGH’s recent decision applies only to uses of the sample after June 7, 2021. For that period, the court determined Pelham’s use of the Metall auf Metall loop fell under the pastiche exception. The ruling relies on the ECJ’s April 14, 2026 clarification of pastiche: a work that references an original while creating a “recognizable artistic or creative dialogue” with it.
The court found Nur mir transforms the original rhythm into a different musical genre while still evoking it, meeting the ECJ’s criteria. It also satisfied the EU’s three-step test for copyright exceptions, ensuring the use didn’t harm the original work’s commercial value or the rights holder’s interests.
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Next steps for sampling and the case
The BGH’s decision doesn’t fully resolve the Metall auf Metall dispute. The case remains pending for the 2002–2021 period, a ruling Pelham is challenging before Germany’s Federal Constitutional Court.
The case has influenced how courts view sampling, but the BGH’s refusal to define pastiche more precisely means future disputes will test its limits. For now, the decision provides clarity: even subtle, transformative uses of copyrighted material can qualify as pastiche if they engage with the original in a way listeners recognize.
The legal battle may continue, given its long history.