After nearly a quarter-century of courtroom ping-pong in the Pelham saga, the Court of Justice clarified in its judgment of 14 April 2026 how the EU copyright exception for ‘pastiche’ provided for in Directive 2001/29/CE may be defined and applied to sampling.
Facts of the case
The case stems from a long-running legal dispute, lasting nearly twenty-two years, between, on the one hand, CG and RL, the founders of the German band ‘Kraftwerk’, and, on the other hand, Pelham, SD and UP (‘Pelham and Others’), namely the producer and the composers involved in the song at issue.
It all started in 1977, when CG and YN published a phonogram containing the song “Metal auf Metall”. Twenty years later, in 1997, SD and UP composed the song “Nur mir”, which was released on phonograms produced by Pelham. CG and RL (later YN as RL’s successor in title) claimed before the Regional Court of Hamburg that Pelham and Others had electronically copied, or “sampled”, a two-second rhythm sequence from “Metal auf Metall” and used it in a continuous loop in “Nur mir”, thereby infringing the rights they held as phonogram producers, performers and, in CG’s case, as author of the musical work.
The case bounced through German courts for 22 years, with five early judgments (Regional Court of Hamburg in 2004, Higher Regional Court of Hamburg in 2006 and 2011, and German Federal Court of Justice in 2008 and 2012) all backing Kraftwerk. However, the Federal Constitutional Court of Germany stepped in and set aside those decisions, referring the case back to the German Federal Court of Justice.
It was in that context that the case reached the Court of Justice of the European Union (“Court of Justice”) for the first time, in Case C-476/17 (Pelham I). Following a request for a preliminary ruling from the German Federal Court of Justice, the Court addressed whether ‘sampling’ falls within the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29 to authorize or prohibit the reproduction of its phonogram. The Court confirmed that even a (very) short sample needs permission, unless that sample is included in that other phonogram in a modified form unrecognisable to the ear.
Following this first Court of Justice intervention in the Pelham saga, the German Federal Court of Justice referred the case back to the Higher Regional Court. The latter court varied its earlier judgment by distinguishing three separate periods: the first period, before the end of the transposition period of Directive 2001/29 ; the second period, from the expiry of the transposition period until the entry into force of the new rule defining copyright limitations (notably the ‘pastiche’ exception) in the German Copyright Act ; and the third period, from the entry into force of these newly applicable rules of the German Copyright Act (paragraph 51a).
The Higher Regional Court found infringements only in respect of the second period and ordered Pelham and Others to surrender for destruction the copies of the phonograms containing “Nur mir” manufacturedand/or placed on the market during that period, as well as to pay damages. As for the first period, it held that there had been no infringement under the provisions of the German Copyright Act applicable at that time.
The key issue then concerned the third period. The Higher Regional Court also held that there was no infringement by taking the view that the sampling constituted use for the purpose of pastiche, as permitted under paragraph 51a of the German Copyright Act.
CG and YN, as RL’s successor in title, contested that finding and brought an appeal on a point of law before the Federal Court of Justice, which referred the matter once again to the Court of Justice (Pelham II). In sum, by this second request for a preliminary ruling, the Federal Court of Justice asks the Court of Justice, first, to interpret the notion of ‘pastiche’ as provided in Article 5(3)(k) of Directive 2001/29 and, second, to clarify whether the pastiche exception requires an intention on the part of the user to employ the protected work or subject matter for that purpose.
Findings of the Court
In its judgment, the Court of Justice (Grand Chamber) held that the notion of pastiche constitutes an autonomous concept of EU law, which must be interpreted uniformly across Member States in accordance with its usual meaning and the context of Article 5(3)(k) of Directive 2001/29. The Court substantially endorsed the approach proposed by Advocate General Emiliou, while rejecting any suggestion that the pastiche exception could serve as a ‘catch-all’ defence for every form of creative reuse.
According to the Court, pastiche only 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’. It further stated that such ‘dialogue’ may take different forms including stylistic imitation, tributes or critical engagement with the existing works. However, while the concept of pastiche may overlap with the concepts of parody and caricature, the Court still stressed that they remain distinct: pastiche may constitute an expression of humour or mockery, but it cannot be required to be so.
Turning to the sampling technique at issue, the Court recalled that it constitutes 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. However, it also referred to its ruling in Pelham I, confirming that a phonogram producer’s exclusive right under Article 2 of Directive 2001/29 enables prevention of sampling from that phonogram where the sample remains recognisable to the ear. A fair balance between the protection of artistic freedom and copyright can therefore only be achieved when the concept of pastiche covers sampling in line with the requirements set out by the Court.
Finally, as for the second question, the Court ruled that classification as pastiche does not depend on the subjective intention of the user to employ an existing work for that purpose. Instead, the assessment remains objective: a person familiar with the earlier work must be able to perceive the new creation as a pastiche.
Concluding Remarks
The Pelham (II) judgment provides much-needed clarity on the notion of pastiche, confirming it as a narrow but viable defence for artistic reuse, particularly in contexts like music sampling. By rejecting a broad interpretation that could undermine copyright protection, the Court maintains the system’s balance between the protection of the freedom of arts and the protection of copyright.
The ruling offers practical guidance for courts, creators and rightsholders: pastiche succeeds where there is overt, transformative engagement with the original work, but fails for mere borrowing without “artistic or creative dialogue”. It also weaves together prior standards on exceptions such as “autonomous concept of EU law” and “fair balance”, making it a versatile reference for future cases.
In sum, Pelham II closes a chapter in one of EU copyright’s longest sagas, while paving the way for more predictable applications of the pastiche exception across the Union. It is now for the German Federal Court of Justice to rule (for good?) on the pending dispute, in light of the clarifications provided by the Court of Justice.