back to article Kraftwerk versus a cheesy copycat: How did the copycat win?

Have you noticed that with copyright, the people who complain loudest and longest about how unfair it all is often the least talented? Grumbly bass players. Science fiction "novelists". Otherwise-unemployable "academics". It's a union of the bitter and grudgeful, with a distinct talent deficit. It doesn't take much to …

  1. msknight
    FAIL

    Kraftwerk themselves stand accused of using a sample from a sound effects record... http://www.tanith.org/?p=6605

    Some are asking whether this is a case of double standards. Popcorn icon please.

    This is also reminiscent of the GIF situation. If they didn't want this kind of thing to happen, then the industry should have stamped it out in the 80's, not wait until three decades down the line to start prosecuting people for what has become a societal norm.

    1. Anonymous Coward
      Anonymous Coward

      I think you didn't understand the part where he explained «the Industry» is perfectly fine with doing it, as long as it's done politely, ie, by asking for permission and making a deal first.

      1. m0rt

        Taking a sound from a sound effects record, one would think, (I do), that this isn't the same as taking a sample from their song and using it for their entire song.

        Vanillia Ice, anyone?

        1. VinceH

          "Taking a sound from a sound effects record, one would think, (I do), that this isn't the same as taking a sample from their song and using it for their entire song."

          Another reason it's not the same is because the sole purpose of a sound effects record is for the sounds it contains to be used by the people who have it. It's not as if people buy them to just sit down and listen to them.

          Though in this strange world, I expect there's someone who does.

          1. Anonymous Coward
            Anonymous Coward

            @Vincett

            >Another reason it's not the same is because the sole purpose of a sound effects record is for the sounds it contains to be used by the people who have it. It's not as if people buy them to just sit down and listen to them.

            In the early days of stereo there were many such records made for listening pleasure Trains passing from one side of your living room to the other for example.

            1. Stevelane

              Re: @Vincett

              Those records were intended as stereo demonstrations. They were not sold as samples. But I do confess to listening to samplers just for hell of it! Glad to have got that off my chest after all this time !

            2. Stevelane
              Facepalm

              Re: @Vincett

              Those records were intended as stereo demonstrations. They were not sold as samples. But I do confess to listening to samplers just for hell of it! Glad to have got that off my chest after all this time !

              1. VinceH
                Facepalm

                Re: @Vincett

                "But I do confess to listening to samplers just for hell of it! Glad to have got that off my chest after all this time !"

                Actually, thinking back, I once bought a sound sample CD - the aim being to find a sound that would fit in one of my old games. I didn't find anything suitable on that CD, but I have to admit I did enjoy listening to it to find that out.

                So, er, hoist by my own petard with the comment about it being a strange idea, I think. :)

              2. Triggerfish

                Re: @Vincett

                Aaah yes I had one with a formula one car and a F4 phantom doing a flypast great for positioning the stereo speakers.

      2. msknight

        " ie, by asking for permission and making a deal first."

        The principle here is that they're saying that someone else should have asked for permission... when they didn't ask for permission themselves.

        Ergo, they can go whistle in the wind.

        1. m0rt

          So, they used a sound effect of a sound effect vinyl - which was released for this purpose.

          Like buying a 'Sampling CD' to use a sample in your own works.

          '...when they didn't ask for permission themselves.'

          1. Usually the sound FX vinyl allowed a license to use as soon as you bought the vinyl. (Though without seeing the back I can't categorically state this is so).

          2. The purpose of the page you posted was mainly pointing out the fact Hutter stated it was his brother's VW they recorded - and then this recording was shown to have the same recording. Autobahn came out in 1975, Gerausche en Stereo came out in 1974.

          '...Ergo, they can go whistle in the wind.'

          A little dismissive of the points being raised.

          1. msknight

            "A little dismissive of the points being raised."

            True.

            It hast to be said that if he is going to stand on the pedestal, then he should have his own house in order first. The brother's car, VW sample record means he should have a good deal more shame than he is displaying. Whichever way you cut this, he hasn't been honest.

            To the legal point, though, I return to the fact that this has been going on for decades and should have been stamped on by the industry itself in the early stages. Coming in at this time is going to have a considerable effect on the music industry.

            Where would it stop? What if two people programmed a moog in a similar manner, but didn't hear each other's recordings... who's going to win that one in court? What about all those that experimented with programmed Fairlight songs? What about the people that have used samples throughout their Tracker and Amiga music, etc., etc.?

            It can't be an automatic, "It's there, therefore you're liable." It HAS to be based on the judgement of a contribution that it makes to the portion of the work itself. And that opens up a whole can of worms... what about works which are entirely made from samples of other people's works, as happened in that YouTube video (actually, I think there's a few of them now) which were made from samples of others videos - https://www.youtube.com/watch?v=WoHxoz_0ykI - where do you draw the line?

            (by the way, it's worth reading the notes on the video about the subject as well. It was also described in some places as, "This is so hip that even the people in the band haven't heard of the band." - https://www.reddit.com/r/videos/comments/2g8em6/guy_takes_clips_of_amateur_musicians_on_youtube/ )

            1. msknight

              Derivative work. Plain as. Kraftwerk should lose this.

              Having listened to them both, the "copycat" is a derivative work. Just like the Wiki article shows a picture of the Mona Lisa with a moustache painted on, and that artist in the US who takes screen grabs of him making a comment on other people's pictures and creating a new picture of the result, and selling it at an absolutely disgusting fortune while the original artist gets nothing.

              If Kraftwerk win this, it will go far beyond the realm of music.

            2. m0rt

              "To the legal point, though, I return to the fact that this has been going on for decades and should have been stamped on by the industry itself in the early stages. Coming in at this time is going to have a considerable effect on the music industry."

              Well, in truth, am suprised it got to this stage. We aren't talking about something that was similar, we are talking about a sample that was then used as the basis for the song. They *could* have programmed their own beat here, and it would never even be raised. Generating similar sounds on a synth can't even be taken as copywriteable, you may as well state two standard Telecasters played through a Marshall stack are in the same arena. But if you then start to produce something that is, and here is the case, 'obviously' someone elses tune then you will get into difficult territory. Note here, Tune. Meaning the entire track. Not a similar three chord progression.

              "It can't be an automatic, "It's there, therefore you're liable." It HAS to be based on the judgement of a contribution that it makes to the portion of the work itself. And that opens up a whole can of worms"

              But sample someones three chord progression, that is recognisable as that persons three chord progression, then make that run throughout the entire track? The offending track distinctively has their sampled piece of tune which is used over and over and over again. Whether or not the track sounds like the original, it is still built out of the original.

              Plenty of works work on samples. Usually the artists in question will ask, if the license requires it. Tracks where they are not asked, generally are not commericial or make it big. If they did, then it would become a legal issue.

              What Kraftwerk are doing is asserting their right to have some say on how their work is used significantly.

              "what about works which are entirely made from samples of other people's works, as happened in that YouTube video (actually, I think there's a few of them now) which were made from samples of others videos - https://www.youtube.com/watch?v=WoHxoz_0ykI - where do you draw the line?"

              Because this happens does this make it necessarily right? Parody I get. Works of art that sample other works of art, i get. People performing other peoples work, I get. There are and have been perfectly workable laws that exist and allowed this to go on with no real trouble, except when dealing with sampled works of sampled works of sampled works...

              But we are not talking about a fair use. We are talking about a piece of work, two seconds of which is recognisable, which means it is recognisable for the entire length of the offending track. That is crossing a line.

              I think.

              " What about the people that have used samples throughout their Tracker and Amiga music, etc., etc.?"

              Ha - great days. Amigas rock. Anyway, in most cases Amiga tracker based tunes are not commercial. Kudos for getting in Moog, Fairlight and Amigas in the same paragraph. Just a few of my favourite things.

              i think a fitting closing comment is to mention one of the most sampled pieces of all time: The Amen Break. This is a good video: https://youtu.be/5SaFTm2bcac

              1. msknight

                @m0rt - Damn good post that. Landon Proctor knows what he's talking about.

                "The story demonstrates that a society, quote, free to borrow and build upon the past is culturaly richer than a controlled one, unquote, to use the words of Lawrence Lessig, Satnford Law Professor, copyright reform advocate and co-founder of creative commons..."

                Exactly why, for the sake of society, Kraftwerk should lose this.

          2. g e

            Amateur use only

            Some SFX records were only for amateur use, I seem to remember the BBC Death & Horror SFX record stipulated this on the sleeve.

            Having said that I'm pretty sure FSOL used Dr Jekyll's Laboratory effect on a tune (though they may well have cleared it)

        2. Someone Else Silver badge
          Flame

          @msknight

          You clearly have no f-ing idea what a "sound effects record" is, what's its intended use, or who may use it. Back In my (commercial) radio daze [sic], we had numerous of these, which we were legally allowed to use in commercials, promos...pretty much anything we wanted. The sound effects record labels explicitly permitted such reuse (and note, this re-use was for commercial gain). So Kraftwerk was legally allowed to use material from a "sound effects record" for whatever they wanted to, assuming they actually bought the record.

          But don't let that get in the way of a good bashing.

          1. msknight

            Re: @msknight

            @Someone Else - Then why didn't he state this in the interview? Would have been plain, simple, and not woven a web. Now, as a result, he's in the firing line.

            1. Someone Else Silver badge

              Re: @msknight

              Actually, he's only in the firing line by someone who apparently doesn't know what he (or she?) is talking about.

  2. Pristine Audio

    It's a minor component part of the song - the court was right

    I'm guessing the Sabrina Setlur track isn't to Andrew's taste then.

    Listening to the two I am inclined to agree with the court. It's just a 2 second drum/rhythm loop which in itself is hardly massively original. It sits deep in the mix and isn't a major component of the song. It's a far cry from the way The Verve's poached strings featured in Bittersweet Symphony.

    A line certainly needs to be drawn somewhere. But perhaps it takes a little more musical insight than the article here offers (beyond slagging off the 1997 track) to work out where that might be.

    1. Anonymous Coward
      Anonymous Coward

      Re: It's a minor component part of the song - the court was right

      " It sits deep in the mix and isn't a major component of the song"

      #Epic #Fail.

      It's the f*cking drum beat to the song. Without the Kraftwerk sample, the song would sound like Enya.

    2. m0rt

      Re: It's a minor component part of the song - the court was right

      So, it is just a simple 2 second sample. Innocuous, you infer.

      So the question would be why did they sample it then? They could have created their own drum beat similar, even, but it wouldn't have been associated with KW. With that in mind, why did they sample it, then?

      The only reason can be that it *was* Kraftwerk. Yes, it is only 2 seconds, but it is repeated for the entire length of the track.

    3. Pascal Monett Silver badge

      Take a small enough part of anything and I'm sure your argument stands.

      I don't see why copyright should be restricted to an entire song - it's the individual notes that make up the song. Nobody has copyright on individual notes, but that does not mean that taking out four or five and sequencing that is a Good Thing (TM).

  3. Anonymous Coward
    Anonymous Coward

    Silly judges

    A wiser court will have sided with Hutter and Kraftwerk,

    Isn't it a somewhat fine example of hubris (to be polite) to assert that one's personal opinion demonstrates greater wisdom than the considered judgement of the German Constitutional Court?

    1. TeeCee Gold badge
      Mushroom

      Re: Silly judges

      Oh, I dunno. Somewhere in there they described hip-hop as "art".

      I reckon Andrew's personal opinion has it against that of a bunch of tasteless idiots.

  4. TheProf
    Trollface

    The sample

    Is it that 'chush chush-chush chush' noise that's supposed to sound like a railway locomotive?

    It's hardly Beethoven is it?

    (Hey, you don't think they'll come after me for going 'chush chush-chush chush'?)

  5. DerekCurrie
    Paris Hilton

    The Lawyers Won Again

    The 'copy' is of a rhythm from a Kraftwerk tune. It was placed under one version of a specific song. When you hear that version of the song you hardly notice or care that it was quoted from anything. It's innocuous, harmless and irrelevant to Kraftwerk's work, reputation or financial income. It's just a rhythm. Why this suit was created is beyond my comprehension. The lawyers won again.

  6. Paul Shirley

    "the court argued that the producer could have reproduced the distinctive drum sample himself"

    which will also get you sued in much of the world. So hardly a workround.

  7. Anonymous Coward
    Anonymous Coward

    "... often the least talented? Grumbly bass players ..." I thought that was drummers?

    What do you call a drummer without a girlfriend? Homeless.

    What do you call someone who hangs around with the musicians in the band? The drummer.

    1. TeeCee Gold badge

      That's: "What do you call a van driver who hangs around with musicians?".

    2. Darryl

      What's the difference between a drummer and a drum machine?

      You only have to punch the instructions into the drum machine once

      1. captain veg Silver badge

        My favourite...

        A man walks into a music shop. The owner says to him "hey, listen to this, I've just been told the latest stupid drummer joke". The man replies "excuse me, actually I am a drummer myself", "Don't worry", says the owner, "I'll tell it to you slowly".

        -A.

        1. adnim

          What did the drummer...

          get on their music exam paper?

          Saliva

  8. Frank Bitterlich
    Thumb Up

    What the court did examine, though, ...

    ... was the amount of damage that Kraftwerk suffered from the use of this two-second sample, and compared that to the constitutional right of artistic freedom. And they ruled that, in this specific case, the latter was more important.

    I don't like Pelham's music or the genre as a whole at all, but I tend to agree with the court here. It's a rare example of a "common sense" ruling - compare the interests of both parties and decide which one weighs more.

    Another thing missing from this article: The court expressly said that a mandatory compensation might be regulated by legislation in the future. There is no such law currently, so the only thing the court had to decide is whether the original ruling had considered artistic freedom enough; and they ruled that it didn't.

    By your line of argument, Andy Warhol should have been sued out of his pants by Campbell's for his soup can picture.

    1. allthecoolshortnamesweretaken
      Pint

      Re: What the court did examine, though, ...

      Frank, you've beat me to it. This one is for you --->

    2. m0rt

      Re: What the court did examine, though, ...

      A painting of a soup can isn't the same as makeing soup, and selling it in a similarly wrapped can.

      Creating a track pretty much entirely out of sampling a section of another track is still a track. This isn't about money, it is about what is considered the lawful thing to do.

      If you were recorded, say, giving a speech or stating something somewhere on someone's phone, then a sample of what you said, just a couple of words, was then used as the basis for a track, what would you think? We are not talking about parady, here, which is protected, usually. We're talking about using your words, spoken by you, as the main basis for a track, being allowed by law.

      1. Anonymous Coward
        Anonymous Coward

        Re: What the court did examine, though, ...

        Don't know if it was ever tested by the courts, but Steve Reich's It's Gonna Rain does exactly that.

    3. Charlie Clark Silver badge

      Re: What the court did examine, though, ...

      Yes, the whole genre of "derivative works" from Marcel Duchamps to Warhol and Joseph Beuys has already been canonised and legally validated.

      I was actually very surprised to see the case make its way to the Constitutional Court but I guess it makes a change from the political suits and the Court does get to choose which suits it hears.

  9. THUFIR HAWAT
    Meh

    derivative bad??

    And yet it's ok to copy declaring code because...? Oh, right, it's transformative, or something. Or maybe because the JLS is free? Or Java is free? Some consistency would be appreciated.

    A derivative song gets an editorial lambasting the notion, but derivative software, not so much, because, err, why? Oh, right, Ellison.

  10. Imsimil Berati-Lahn

    It all just whiffs of publicity

    I can't help thinking that there was a deal reached along the lines of:

    "Hey Kraftwek guy, we'd like to use a sample off one of your records. That okay?"

    "Yah, sure bro. Hey, I've got an idea. If your track doesn't get much airplay / downloads, we could file a copyright suit against you and, hey presto! A bunch more people will know about it."

    "Man, that's big of you. What about the legal bills?"

    "It's okay. Mate of mine's a judge and it's all deductible anyhow."

    "Tidy! Cheers dude."

    "Later!"

    1. YetAnotherLocksmith Silver badge

      Re: It all just whiffs of publicity

      Not sure they'd go to the Supreme Court, let alone Appeals, just for publicity. They aren't Donald Trump.

  11. NotBob

    I love how the article prtrays copyright as protecting the little guy and all.

    Of course, copyright law in America always gets extended just before Steamboat Willie comes out from under protection...

    1. Eddy Ito
      Joke

      To be fair if they don't do something then poor Willie just winds up as the lead character in a series of porn films with titles like "Steamboat Willie goes down the Amazons" and "Steamboat Willie lowers the boom". Think of all the scarred minds with such fond memories of the original after all there might be some that are still alive.

      1. YetAnotherLocksmith Silver badge

        Like that doesn't already exist. You just can't see it because of Copyright.

  12. I am a machine (says Turing test)

    ARE

    Have you noticed that with copyright, the people who complain loudest and longest about how unfair it all is often the least talented?

    Have you noticed that there is a verb missing in this sentence? Is the word "ARE" copyrighted?

    1. Doctor Syntax Silver badge

      Re: ARE

      "Have you noticed that there is a verb missing in this sentence? Is the word "ARE" copyrighted?"

      No, but now you've drawn my attention to it I notice that one of them fails to agree with its subject.

      1. Anonymous Coward
        Anonymous Coward

        Re: ARE

        "Have you noticed that there is a verb missing in this sentence? Is the word "ARE" copyrighted?"

        No, but now you've drawn my attention to it I notice that one of them fails to agree with its subject.

        No. it's agreeable.

        It should read:

        "Have you noticed that with copyright, the people who complain loudest and longest about how unfair it all is are often the least talented?"

        "Are" goes with "the people"

        1. Doctor Syntax Silver badge

          Re: ARE

          'No. it's agreeable.

          ...

          "Are" goes with "the people"'

          That's what's meant by a verb agreeing with its subject. The original, "is", didn't.

          1. Vic
            Headmaster

            Re: ARE

            That's what's meant by a verb agreeing with its subject. The original, "is", didn't."

            But "the people" is not the subject of "is"; "it" is, and "is" agrees with the singular nature of "it".

            Vic.

  13. joeW

    "Have you noticed that with copyright, the people who complain loudest and longest about how unfair it all is often the least talented?"

    Hah.

  14. Doctor Syntax Silver badge

    "would make entire genres of art like hip hop impossible to make"

    And do they say that's a bad thing?

  15. kain preacher

    "would make entire genres of art like hip hop impossible to make"

    Actually no. There is a lot of hip out there that is not samples.

  16. Just Enough

    Oh the irony

    There some kind of irony to be had in an article that criticizes Google for "using other people's stuff (professional and amateur) to harvest personal data for ad bucks", but also utilises a website that has an embedded video of Kraftwerk, which is an uploaded copyright violation on Youtube, which is owned by Google.

    Add to that that the audio on the uploaded video is a demonstration of "stereo difference", a process often utilised in order to deconstruct (and therefore sample) recordings.

  17. Tempest8008
    Black Helicopters

    Not to derail the conversation...

    ...but has anyone else noticed in the headline image of this article that the guy on the left looks JUST LIKE CHIEF O'BRIEN FROM STAR TREK!?

    Sampling be damned! CLONES!!!

    1. Francis Boyle Silver badge

      Re: Not to derail the conversation...

      Not only that he appears to be wearing a holdeck.

  18. BurnT'offering

    Why science fiction "novelists"?

    OED:

    Novel - A fictitious prose narrative of book length, typically representing character and action with some degree of realism

    Novelist - A writer of novels

    So, why the inverted commas?

    1. Dave Bell

      Re: Why science fiction "novelists"?

      Science fiction novelists vary a lot in their opinions of copyright, and there is a famous and apposite SF story entitled "Melancholy Elephants", but I think it likely that this is a snide comment on Cory Doctorow, suggesting that he doesn't really write novels, or something like that. This is what being a "journalist" can do to you.

      But this article is by Andrew Orlowski, Who is described in Wikipedia as the "executive editor" at Vulture Central. I find myself wondering who edits the editors?

      1. BurnT'offering

        Re: who edits the editors?

        Not he - he just executes them.

        If he's talking about Doctorow, the inverted commas are forgiveable. Oh angry spirit of Barrington J. Bayley - may the the Zen Gun be re-holstered!

  19. imanidiot Silver badge

    This just reinforces my opinion

    that 99% of hiphop and rap is just pure unoriginal shit. Can we please just stop calling these people "artists"?

  20. Dave Bell

    Give me surfeit of it...

    I am not sure that anyone here really knows that much about music, but the core problem lurks in one of two comments, and it's the same one lurking in written fiction.

    There are only so many ways of assembling the components in a useful form. You can't copyright individual words. You can't copyright titles. Trademarks are possible, but the context matters. You can distinguish between John Steed and Nick Fury, with their own teams of Avengers. How many stories are called "Nightfall"? There are a few memorable phrases that get quoted, and get re-used, re-purposed, and revelled in. How many ways can you say "To be, or not to be"

    This case has spent years winding through the courts, and it's all been about copying something on that scale.

  21. Stevie

    Bah!

    Europe could lead the world here by declaring that a copyright challenge not only had to be deemed worthwhile and non injurious to the originator, it had to be voted "not crap" by a 2/3 majority of a random sample of people stopped in the street and forced to listen to it.

  22. PassiveSmoking

    You keep claiming copyright is to protect the little guy

    But this is a perfect demonstration of an attempt at the exact opposite, and far more common, use for it. Copyright is usually used to try and slap the little guy down. Never mind that pesky "fair use" stuff.

    Also, nice ad hominem there (grumbly bass players, et al). Those kinds of tactics are usually the last resort of people without a good actual argument so you know you're in for a ride when the article opens with one.

  23. AllanA

    Holly crap! I watched half the video of Sabrina Setlur and half the day watching old Kraftwerk videos!

    Please don't do that again!

  24. jameshogg

    "Fighting copyright today requires a persecution complex, because concrete examples of real oppression are fleeting and trivial."

    Oh yeah because we all know silly remixes from a few beats and notes are truly the concrete examples of real oppression here. Just like Ice Ice Baby totally destroyed the careers of Queen and David Bowie, only the threat is much worse, because this remix sounds so freaking terrible!! This is literally on par with the Chinese State's Great Firewall, and if we don't go after websites like deviantArt soon we will all be living under a 1984 state you can count on it!

    It sort of reminds me how in the Dancing Baby case, where this video was shot down because it posed such a threat and "didn't contribute a thing" to art and culture (these guys would make great upper-class art-critic snobs who could look down on childrens' drawings in a community hall just after having been at an art gallery staring at scribbles on a plain green canvas and soaking in all the "abstract meaning" BS from it all, only to say every other bit of art sucks especially that from these kids, and only they know what art is because only they've LIVED and BREATHED it, you get the idea), yelling at everybody else who protests "just why are YOU being so hysterical?!?!" Yeah. Because the dancing baby video was the real threat, here.

    And folk like me, the abolitionists, are just sitting on the sidelines spectating all this pointless legal drivel while the number of infringements totally dwarves the number of enforcements in the real world. Like Bill Hicks' joke about trying to sell dirt in the deep south. "Dirt... for SALE!" Yeah, and JPEG dollars could be artificially scarce if we put our minds to it, too!

    Face it, nobody here can name one thing that can't be pirated on the internet. And they never will. Because if you could, you wouldn't NEED copyright law! That's the sad part.

    Start making your livings and going after your free-riders using assurance contracts instead, and stop with these 19-year legal farcicles.

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Other stories you might like