Kraftwerk, Sampling, and the Long Legal Echo of “Metall auf Metall”

5.11.26

I saw Kraftwerk on their tour last year—a reminder that few bands have done more to shape the sound of modern electronic music. Fittingly, Kraftwerk is also at the center of one of the longest-running copyright disputes in music history: the decades-long fight over a two-second sample from the band’s 1977 track “Metall auf Metall.”

The dispute began after producer Moses Pelham used a short rhythm sequence from “Metall auf Metall” in Sabrina Setlur’s 1997 song “Nur mir.” Kraftwerk’s founders claimed that the sample infringed their rights as phonogram producers and, later, copyright in the rhythm sequence itself. The litigation has bounced through German courts, the German Federal Constitutional Court, and the Court of Justice of the European Union more than once.

The latest chapter came on April 14, 2026, when the CJEU issued its Grand Chamber decision in CG and YN v. Pelham GmbH, Case C-590/23, which can be found here: https://courthousenews.com/wp-content/uploads/2026/04/cg-v-pelham-cjeu-judgment.pdf. The decision addresses the EU copyright exception for “caricature, parody or pastiche” under Article 5(3)(k) of the InfoSoc Directive. The German court asked whether “pastiche” functions as a broad catch-all for artistic engagement with an earlier work, including sampling, and whether the user must subjectively intend to create a pastiche.

The CJEU’s answer was balanced. “Pastiche” is not a free-floating exception for every creative reuse of copyrighted material. The Court emphasized that it does not cover concealed imitations or plagiarism; the use must be overt and recognizable. But the Court also declined to limit pastiche to humor, mockery, or stylistic imitation. Instead, pastiche covers new creations that evoke one or more existing works, are noticeably different from them, and use characteristic elements of the earlier work to engage in a recognizable artistic or creative dialogue. That dialogue may take the form of tribute, stylistic imitation, or humorous or critical engagement.

For sampling, that matters. The Court recognized sampling as a form of artistic expression protected by the freedom of the arts, while also reaffirming that phonogram producers generally have the right to prevent recognizable sampling of their recordings. The legal balance, at least in the EU, may allow sampling under the pastiche exception when the new work satisfies the Court’s “recognizable artistic or creative dialogue” test.

For those of thus in the U.S., the decision is not a U.S. fair-use case and should not be treated as one. U.S. sampling law remains shaped by a different statutory framework and different case law. But the CJEU’s reasoning highlights a familiar tension: copyright protects creative investment, but music itself often develops through reference, reuse, quotation, and transformation.

Kraftwerk’s own influence is almost impossible to separate from modern electronic, hip-hop, pop, and industrial music. That is what makes the case so interesting. The band that helped create the sound of the future also forced courts to confront how much of the past future artists may lawfully carry forward.

Seth Ogden, Ph.D. | Shareholder