Second CJEU Ruling In The Pelham Case Defines The Notion Of Pastiche

Starting with a song produced in 1997, and a legal dispute debuting in 2004, the Pelham saga is a case originating from the German courts which brought to light the interaction between the concept of sampling and copyright. As a technique, sampling involves taking a segment of an existing audio recording and repurposing it in a new composition. From a copyright perspective, such a practice would ordinarily qualify as infringement due to the unauthorised reproduction of protected material. Yet, as the Pelham case illustrates, certain exceptions may legitimately authorise such use. Even more, the EU judges’ conclusions might be commercially relevant for the music industry, as well as having severe ramifications in advertising, content production or gaming branches.

In 2004, the German band Kraftwerk sued Moses Pelham, a hip-hop producer, due to an alleged copyright infringement for the use of a two-second segment from a song called “Metal auf Metall”, which was further altered and integrated as a loop into the song “Nur Mir”, produced for the singer Sabrina Setlur. After a tumultuous road before the German courts, the case first reached the CJEU based on a German exception under copyright law. Specifically, the national courts asked whether sampling in this case could be interpreted as quotation, as provided by the InfoSoc Directive¹.

In the first preliminary ruling, the CJEU concluded that sampling without the author’s consent constitutes unlawful reproduction, irrespective of the length of the sampled fragment, except when the sample becomes unrecognisable to the ear in the new work². This leads to the necessity of a case-by-case assessment, in order to ascertain whether the general public could detect the sampled segment in the new work. Based on the ruling in Pelham I, the German courts held that Moses Pelham’s sampling constituted copyright infringement only for the period between the deadline for transposing InfoSoc and the entry into force of the Germany’s transposition of the DSM³. During that window, German law contained no pastiche exception, as the InfoSoc Directive had left the caricature, parody, and pastiche exceptions optional, and Germany had chosen to implement only the parody exception.

The landscape shifted with Germany’s transposition of the DSM Directive, which introduced all three exceptions into national law, namely caricature, parody, and pastiche, without confining them to online content, despite the DSM Directive rendering them mandatory only in the context of certain online uses. This broader implementation reopened the question of whether Pelham’s sampling could now fall within the scope of the newly introduced pastiche exception. As EU law did not define the concept of “pastiche”, the German court referred to the CJEU seeking clarification of its meaning and scope.

On 14 April 2026, CJEU published its long-awaited judgment in Pelham II, addressing two central questions. The first related to the overall definition of the notion of pastiche (since the EU framework is silent on this matter) and whether it could function as a catch-all clause, encompassing uses that do not fit any other exception. Secondly, the national court asked whether a work must be created with the conscious intention of producing a pastiche, or whether it suffices that the dialogue with a prior work is recognisable to an audience familiar with it.

For the first question, the Court confirmed that pastiche is an EU autonomous notion, which was not a surprising conclusion, given the similar interpretive approach previously applied to define the notion of parody⁴. As for the definition itself, the CJEU held that a pastiche is a work that “covers creations which evoke one or more existing works, while being noticeably different from them, in order to engage with those works in a form of artistic or creative dialogue that is recognisable as such”.⁵ The judges also insisted that pastiche cannot serve as a residual safety net, meaning that if a new use cannot be qualified as an existing exception, it cannot automatically become legitimate through the pastiche exception. Applied to the facts at hand, it could be argued that “Nur Mir” qualifies as a pastiche: it evokes the Kraftwerk’s segment, while standing as an original work, with a recognisable dialogue that informed listeners would recognise.

Besides this, the Pelham II judgment officially drew a clearer boundary, at least indirectly, between the three distinct concepts of parody, caricature, and pastiche⁶. Just as important, the case reminds that a fair balance must be struck between the interests of copyright owners and the freedom of artistic expression of the users⁷, which essentially encourages transformative uses for commercial purposes, as long as the investment of the phonogram producers is also kept in mind.

The merit of the judgment stems especially from providing a legal definition to pastiche, which does not have a clear meaning in everyday language. The definition thus had to stray away from the method of interpretation usually employed by the CJEU for EU autonomous notions, which is the “meaning in everyday language”, and had to analyse the notion within its context in InfoSoc. Nonetheless, where the Pelham II case intersects with the general consensus and where the major contribution of the judges lies is in bringing the notion of “hypertextuality” in the copyright framework. Hypertextuality can be understood as the feature of artistic works of evoking to some degree the characteristics of past works.

As a consequence, pastiche may raise questions pertaining to the originality of a work, thus to the degree to which the work itself may be protected through copyright. However, it must be stated that originality of the work employing pastiche may be in fact formed by the creator’s ability to absorb past works, to identify relevant artistic concepts, and to apply personal experiences and creativity to the past concepts in order to create the new work. Sampling is thus a perfect example as a technique capable of benefiting from the pastiche exception. Of course, in the light of Pelham II, there are now clear limits in place for case-by-case reviews within the framework set out by InfoSoc. These limits may also be relevant for other branches that may employ transformative techniques such as sampling, even without being aware. For example, digital content production may be directly influenced by these conclusions, with materials often employing collages, remixes or memes in order to grab attention.

An alternate interpretation by the EU judges, reaching an opposite conclusion, could have led to a chilling effect on artistic development. This conclusion is easily supported by the music industry’s history itself, where sampling, as an example, played a paramount role in developing entire music genres. For instance, a seven-second drum piece from the song “Amen, Brother” by the Winstons may have been integral to the birth and development of hip-hop, drum & bass and jungle⁸. The chilling effect could be imagined as staggering advertising as well. Marketing departments may be prone to reference copyrighted works in order to attract consumers or to reference current trends, so that the pastiche definition may be helpful. Nonetheless, an existing definition also means that special care should be given to campaigns involving such references, especially in online marketing, where rules may seem less stringent for creative departments.

That said, the definition itself carries an inherent risk. The phrase “in order to engage with those works in a form of artistic or creative dialogue” might be construed as notably ambiguous, and the judges offered little further guidance on its meaning. In turn, with the definition now established , the effective application is left to to the German judges and, naturally, to national courts across the EU tasked to analyse cases on sampling or on pastiche, more generally. The inherent risk here is that the national judge will have to conduct a creative assessment, which may give rise to unpredictable judgements, finally affecting the larger concept of legal certainty within the copyright framework. In practice, this may lead to more risk-averse approaches for creative industries and, inherently, to concerns related to innovation in sectors such as copywriting, advertising or music production, the latter being the more obvious domain potentially being affected by this chilling effect.

What is certain is that this artistic judgment, being such an inherently subjective process, might suffer from the same issue that is omnipresent in EU copyright law, namely that national traditions and legal frameworks will lead to different local interpretations of what artistic engagement essentially means. Of course, on paper, the entire purpose of the copyright directives (and their interpretation by the CJEU) is to set objectives which must be reached through local legislative means. However, given that contemporary works are so tied to online distribution, one must question to what degree freedom of expression is hurt by the separate interpretations of what constitutes artistic engagement.

Finally, Pelham II adds another piece to the puzzle of the already fragmented copyright framework of EU Member States. Nonetheless, from a commercial point of view, it may lead to parties interested in using sampling-like techniques choosing to avoid licensing altogether and to base their works on the pastiche exception. Thus, depending on the national interpretations, Pelham II may provide a much-needed escape route for such works, be it a hip-hop instrumental, a video ad referencing a quote from a viral clip, or a meme shared by your favorite grocery store using an image from a famous movie. That is why future national case law centered on the conclusions of Pelham II will be important to watch, irrespective of industry.

Footnotes

1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

2 CJUE, Case C-476/17 Pelham and Others ECLI:EU:C:2019:624.

3 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

4 CJEU, Case C-201/13, Deckmyn ECLI:EU:C:2014:2132.

5 CJEU, Case C-590/23, Pelham II ECLI:EU:C:2026:290, p. 50.

6 Pelham II, p. 42.

7 Ibid., p. 45.

8 M Savage, ‘Amen Break Musician Finally Gets Paid’ (BBC News, November 11, 2015) https://www.bbc.com/news/entertainment-arts-34785551, accessed 22 April 2026.