Music Sampling and Pastiche: CJEU Defines the Scope of a Key Copyright Exception

Background

The origins of this dispute are well known in copyright circles. In 1997, music producer Moses Pelham lifted a two‑second rhythmic sequence from Kraftwerk's "Metall auf Metall" for use in Sabrina Setlur's song "Nur mir," slightly altering the loop and running it continuously throughout the recording. The plaintiffs, C.G. and R.L. (subsequently Y.N., as R.L.'s heir), founding members of Kraftwerk, sued before the Hamburg Regional Court (Landgericht Hamburg), alleging infringement of their neighboring rights as phonogram producers, their performing artists' rights, and C.G.'s copyright in the underlying musical work.

What followed was a litigation odyssey through multiple German courts. In 2019, the CJEU weighed in for the first time with Pelham I (Case C‑476/17), ruling that phonogram producers may oppose the use of even a very short sample unless it is included in a modified and unrecognizable form. Then came a legislative shift: on June 7, 2021, Germany introduced Section 51a of the German Copyright Act (Urheberrechtsgesetz), which for the first time explicitly codified exceptions for caricature, parody, and pastiche. Armed with that provision, the Higher Regional Court of Hamburg (Oberlandesgericht Hamburg) found the sampling to be permissible pastiche—but only for the period after the statutory amendment took effect.

C.G. and Y.N. appealed to the BGH, which stayed the proceedings and referred two questions to the CJEU: (i) first, whether pastiche is a residual concept or a more restrictive one, and (ii) second, whether subjective intention is necessary, or whether objective recognizability alone will suffice.

Key Aspects of the Ruling

With Pelham II, the CJEU tackles—and resolves—two questions that have hovered over the pastiche exception since its inclusion in the InfoSoc Directive.

• Pastiche defined: not residual but centered on recognizable creative dialogue. The court confirmed that "pastiche" is an autonomous concept of EU law, meaning that its interpretation must be uniform across all member states. The BGH had floated the idea that pastiche might serve as a residual exception—essentially a catch‑all for any form. The CJEU firmly rejected this while also declining to read the concept too narrowly. What emerged is a three‑part test: Pastiche covers creations that (i) evoke one or more existing works while presenting perceptible differences; (ii) use characteristic elements of those works that are protected by copyright; and (iii) do so in order to engage in a recognizable artistic or creative dialogue with those works. That dialogue can take many forms—open stylistic imitation, homage, humorous or critical engagement—but humor is not a prerequisite. At the same time, the exception draws a clear line against concealed imitations or outright plagiarism; the use must be open and recognizable as such.

• Objective test: subjective intention is irrelevant. The second question yielded a clear answer. The CJEU held that there is no need to probe the user's subjective intention in creating a pastiche. Instead, it is enough that the pastiche character is objectively recognizable to a person familiar with the existing work from which elements have been borrowed, someone possessing the requisite level of understanding. The practical effect is significant: The inquiry centers on how the new work is perceived by an informed audience, not on what the creator was thinking when making the work.

Perhaps most consequentially for the music industry, the court expressly recognized that sampling (i.e., the technique of electronically extracting a fragment of a phonogram and incorporating it into a new work) is a form of artistic expression protected by the freedom of the arts under Article 13 of the Charter of Fundamental Rights of the European Union. The fair balance between that artistic freedom and copyright protection, the court reasoned, is struck where a sample is used to create a work satisfying the pastiche requirements, in other words, a work that makes open use of characteristic protected elements to engage in a recognizable artistic dialogue. Sampling can therefore qualify as pastiche in principle, but the court stopped short of establishing any presumption that it does so.

One further point is worth noting: The court clarified that the three exceptions housed in Article 5(3)(k)—caricature, parody, and pastiche—share certain essential characteristics, in that each requires evoking an existing work while presenting perceptible differences, although they should each cover a different scope of hypotheses. This matters because it forestalls any argument that pastiche simply absorbs or renders redundant the parody and caricature defenses. According to several scholars and practitioners, this decision should also change the practice of national courts, at least those courts, such as the French ones, that are known to be favorable to copyrights holders and to leave little room for implementing the exceptions of pastiche, parody, and caricature, especially in the artistic field.

Practical Implications

The real‑world ramifications of Pelham II will play out differently depending on the parties concerned.

• For sampling artists and content creators: The decision does not upend existing licensing practices. The "dialogue" requirement is sufficiently open‑ended and fact‑sensitive that, in most cases, a credible pastiche argument will strengthen a sampling artist's negotiating hand rather than eliminate the need for a license altogether. The music industry's structural realities persist; distributors typically require clearance representations, and that is unlikely to change soon. Still, where a work manifestly embodies a recognizable creative dialogue with the source material, an artist may be on firmer ground releasing without prior clearance, thereby reducing (though not eliminating) litigation risk.

• For rights holders: Phonogram producers and copyright owners are not left empty‑ Their exclusive rights under Articles 2 and 3 of the InfoSoc Directive remain intact, and they can challenge any recognizable use of samples that fall outside the pastiche requirements. The strategic playbook for enforcement is relatively straightforward: Rights holders should focus on showing that the challenged work merely appropriates protected material without any evident creative interaction with the source. In other words, this means that rights holders should demonstrate that the user has not established a genuine artistic or creative dialogue but has instead relied on the original's commercial appeal as a substitute for their own creative effort. The court's explicit exclusion of concealed imitation from the exception's scope gives rights holders an additional tool to wield against covert copying.

• For policymakers and courts: EU member states that have not yet transposed the pastiche exception into national law will need to do so in accordance with the CJEU's autonomous definition, which leaves no room for divergent local glosses. For national courts, the hard work lies ahead: They will need to develop workable criteria for determining whether a "recognizable artistic or creative dialogue" exists on the facts of a given case. That is an inherently fact‑intensive exercise. The ruling also raises an intriguing question about the continued independent utility of the parody exception within Article 5(3)(k). If pastiche already requires creative dialogue with an existing work, one might ask what parody uniquely adds. This tension may well call for future legislative or judicial clarification.