Dr Luke McDonagh’s research on music and copyright law was cited by Advocate General Emiliou in the Opinion issued on 17 June in Case C‑590/23 - CG and YN v Pelham GmbH and Others. The case arose at the Court of Justice of the EU (CJEU) as a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany). It concerns the interpretation of Article 5(3)(k) of Directive 2001/29/EC, specifically regarding the concept of ‘pastiche’ in the context of an exception to copyright law.
The key issue in the case is whether it is always required to obtain a licence for use – or sampling – of a small extract from a sound recording when the use is for creative expression, such as for the purpose of pastiche. In this case, Moses Pelham, a German hip-hop music producer, sampled a 2 second extract from the song ‘Metall auf Metall’ by Kraftwerk without permission from Kraftwerk. Pelham looped this sample when creating the song ‘Nur Mir’ for German hip-hop artist Sabrina Setlur.
The case is one of the longest running sagas in German litigation history, beginning in 1999 when Kraftwerk sued Pelham over the unauthorised two-second sample. Pelham claimed that he was allowed to sample for creative purposes under the German concept of ‘free use’ (freie Benutzung), codified in Article 24 of the German Copyright Act. Since 1999, the case has been heard at every judicial level in Germany, including at the Federal Constitutional Court (BVergG), where LSE Centennial Professor Susanne Baer was among the judges.
Crucially, when the case first reached the CJEU in 2019, as Case C-476/17 - Pelham v Hütter and Schneider-Esleben, the court ruled that Article 5 Directive 2001/29/EC does not include a comparable notion of ‘free use’ to that found in the German Copyright Act. Indeed, the CJEU indicated in its 2019 ruling that the broad German exception was incompatible with EU law and that recognisable samples required authorisation from the copyright holder. However, the specific issue of ‘pastiche’ was not covered by that earlier ruling, which led to this second referral to the CJEU. In the recent Opinion, AG Emiliou refers to the definition of ‘pastiche’ as follows: that it evokes an existing work by adopting its distinctive aesthetic language; that it shows perceptible differences from the original; and that it is meant to be recognised as an imitation.
Dr McDonagh’s cited article – ‘Is the Creative Use of Musical Works Without a Licence Acceptable Under Copyright Law?’ – was published in the International Review of Intellectual Property and Competition Law (IIC) in 2012. The piece surveys a wide range of musical creativity from the perspective of copyright law, showing the value of re-interpretation of existing musical materials, and arguing for a flexible approach to exceptions to encourage (re)creativity.
In a related vein, AG Emiliou suggests that a more flexible approach to exceptions would be a positive, noting:
“In that regard, it could be desirable to increase the flexibility of that system with respect to artistic (or even communicative) reuse of protected material. It would be better aligned with the needs of various contemporary art movements, such as hip hop. It is questionable, to say the least, whether that genre would have thrived as it did in the 1980s if the exclusive rights granted to authors and producers, as provided in the InfoSoc Directive, had been applied to the letter.”
AG Emiliou is an alumnus of LSE (LLM, 1987). The CJEU’s ruling is expected in the coming months. The cited article by Dr McDonagh is available open access here.