CJEU Clarifies Pastiche Exception for Sampling in Pelham II

On April 14, 2026, the Court of Justice of the European Union (CJEU) issued a landmark ruling in Case C-590/23 (Pelham II), clarifying the scope of the “pastiche” exception under Article 5(3)(k) of the EU Directive 2001/29/EC (InfoSoc Directive) in music sampling. The CJEU held that sampling can qualify as a lawful pastiche where the new work recalls an existing work, exhibits perceptible differences to it, and uses protected elements to engage in a recognizable artistic or creative dialogue with the source work.

The Court’s clarification of what constitutes permissible pastiche use provides long-awaited legal guidance for a range of creative industries — including film, visual arts, literature, and digital content — where artists and creators build upon, reference, or engage with existing protected works. The decision comes at a time when the appropriation of protected works is being debated in the context of AI-generated content.

Background

The case originated from a dispute that has been ongoing for more than 25 years. In 1977, the German electronic music band Kraftwerk released the track “Metall auf Metall.” In 1997, rapper and music producer Moses Pelham sampled approximately two seconds of a rhythm sequence from that track, looping it as the rhythmic foundation of the song “Nur mir” by Sabrina Setlur. Kraftwerk’s co-founders initiated legal action, alleging infringement, and the dispute has since reached the German Federal Constitutional Court (BVerfG), the German Federal Court of Justice (BGH) on multiple occasions, and the CJEU for a second time. In its first referral, the CJEU ruled in 2019 (C-476/17) that sampling without consent can constitute an infringement of phonogram producer rights, unless the audio fragment is used in a form unrecognizable to the ear. Following the introduction in 2021 of Section 51a of the German Copyright Act (UrhG), implementing the EU law exception for caricature, parody, and pastiche, the BGH referred the case back to the CJEU to determine the precise meaning and scope of the pastiche concept. The April 2026 ruling is the CJEU’s response to that question.

Key Aspects of the CJEU Ruling

No Catch-All

The CJEU’s decision in Pelham II provides clarification on what constitutes using copyright-protected material to qualify as pastiche. The Court explicitly confirmed that the pastiche exception does not have a catch-all nature covering every form of creative use of copyright-protected material – hidden imitations and plagiarism fall expressly outside its scope, as the exception only applies to obvious and recognizable forms of using protected material.

Three Cumulative Conditions

The Court identified three cumulative conditions for a use to qualify as a lawful pastiche:

1. The new work must evoke one or more existing works.
    
2. At the same time, the new work must be noticeably different from the original.
    
3. The new work must engage with the source work in an artistic or creative dialogue that is recognizable as such. In this regard, it is necessary that the elements used in the new creation be characteristic of the work from which they originate.

The Court confirmed that it is both sufficient and necessary for the pastiche nature to be objectively recognizable to a person who is familiar with the pre-existing work; no user intent is required.

Uncertainty Remains

While the first two conditions lend themselves to factual assessment, the third condition — the requirement of a recognizable artistic or creative dialogue — is more subjective. The Court provided a non-exhaustive list of forms such a dialogue may take, including overt stylistic imitation, tribute, and humorous or critical engagement with the source work, but it deliberately stopped short of a precise or closed definition. This leaves national courts with interpretive discretion and raises questions the ruling does not fully resolve: what qualifies as a sufficiently “recognizable” creative dialogue, how courts and parties should conduct that assessment, and what constitutes familiarity to the source work.

Practical Implications

The Pelham II outcome affects the legal framework for music sampling across the EU, and producers, rights holders, and their advisers should note the CJEU’s ruling. The pastiche exception is, at its core, a provision that permits the use of protected works without the rightsholder’s consent, which means it may become relevant in any context where one creative work builds upon, references, or engages with another. Such a principle may apply in film, visual art, literature, advertising, or digital content creation. The question of where exactly the boundaries of permissible use remain to be seen. 

The ruling arrives at a time when questions of artistic engagement, recognizable dialogue, and the use of characteristic elements of existing works are becoming increasingly pressing due to AI-generated content.

Ultimately, courts across the EU may be called upon to determine, on a case-by-case basis, when a new work can be said to engage in a recognizable artistic or creative dialogue with the source work within the meaning of the pastiche exception – a context-specific and fact-sensitive inquiry that may generate substantial case law in the coming years.