Pastiche as the Boundary Between Sampling and Copyright Infringement
The judgment of the Court of Justice of the European Union in Case C-590/23, Pelham (concept of “pastiche”), of 14.04.2026 provides an important clarification of the scope of the “pastiche” exception in copyright law, particularly in the context of musical sampling. The Court of Justice of the European Union again addressed the long-running dispute concerning the use of an approximately two-second rhythmic sequence from the track Metall auf Metall by the German band Kraftwerk in the track Nur mir, produced by Pelham GmbH.
The core issue was whether the use of such a sample could, from 07.06.2021 onwards, be regarded under German law as use for the purpose of “pastiche”. On that date, a German exception to copyright and phonogram producers’ rights entered into force, allowing the reproduction, distribution and communication to the public of a published work for the purposes of caricature, parody or pastiche. Since that exception originates in European Union law, the Federal Court of Justice referred questions to the Court of Justice of the European Union concerning the interpretation of the concept of “pastiche”.
The Court of Justice of the European Union interpreted the “pastiche” exception as capable of covering creations that evoke one or more existing works while displaying visible differences from them. Such creations may use certain characteristic elements of the original works protected by copyright, including through sampling, provided that their purpose is to establish an artistic or creative dialogue with those works which is recognisable as such. That dialogue may take various forms, including open stylistic imitation, homage, humorous confrontation or critical confrontation with the original work.
Importantly, the Court of Justice of the European Union did not require proof of the user’s subjective intention to use the work specifically “for the purpose” of pastiche. It is sufficient that persons familiar with the existing work from which elements were borrowed are able to recognise the pastiche nature of the use. The assessment therefore does not depend solely on the internal motivation of the creator of the new work, but rather on the objectively perceptible relationship between the new creation and the original work.
The judgment is significant because it places the “pastiche” exception within the broader framework of a fair balance between copyright protection and freedom of the arts. On the one hand, it confirms that the rights of authors and phonogram producers cannot be circumvented under the general label of artistic freedom. On the other hand, it recognises that contemporary artistic creation often relies on references, quotation-like techniques, stylistic imitation, remixing and sampling, and that such creative practices may fall within the protection of artistic freedom.
The practical significance of the judgment lies in the fact that the use of a recognisable part of another work does not automatically exclude reliance on the exception. The decisive question will be whether the new creation establishes a recognisable artistic or creative dialogue with the original work and, at the same time, differs visibly from it. In the case of Nur mir, it will be for the Federal Court of Justice to determine whether the taking of the rhythmic sequence from Metall auf Metall meets those criteria, particularly in light of the earlier finding that the work involved an artistic confrontation with the original sequence in a different musical genre.
