Pelham II: “CJEU Clarifies the Pastiche Exception for Musical Sampling”

CJEU Clarifies the Pastiche Exception for Musical Sampling

On 14 April 2026, the Court of Justice of the European Union (CJEU) delivered its long‑awaited follow‑up judgment in the Pelham litigation. The ruling clarifies the scope of the “pastiche” exception under Article 5(3)(k) of the InfoSoc Directive 2001/29 and, in particular, whether and under what conditions musical sampling may fall within that exception.

Background and facts

The case concerns the use in the 1997 song “Nur mir” of a two‑second rhythm sequence taken from Kraftwerk’s “Metall auf Metall,” copied electronically and looped. The claimants alleged infringement of their rights as phonogram producers, as well as, in the alternative, their performer’s rights and copyright.

In its earlier Pelham I judgment (2019), the CJEU addressed whether such use constituted reproduction and, therefore, infringement. It adopted a strict approach, holding that phonogram producers may in principle prohibit even very short samples where they remain recognisable, unless they are modified so as to become unrecognisable to the ear. In Pelham II, the German courts returned to the CJEU with a further question: whether such a recognisable reproduction may nevertheless fall within the scope of the pastiche exception.

The CJEU’s reasoning: usual meaning, context and objectives

Because the InfoSoc Directive does not define “pastiche” and does not refer to national law, the CJEU confirms that it is an autonomous concept of EU law, requiring a uniform interpretation across the EU.

The CJEU notes that “pastiche” is rarely used in everyday language and has divergent meanings: some broader (including concealed imitation) and others narrower (requiring overt imitation and a creative interaction with the original). Given this ambiguity, the CJEU further bases its interpretation on context and legislative purpose.

Article 5(3)(k) of the InfoSoc Directive groups caricature, parody and pastiche together. This indicates shared core features – most notably, evoking an existing work while being noticeably different. However, each concept must retain its own function: pastiche cannot be interpreted so narrowly that it collapses into parody or caricature, nor so broadly that it renders them redundant.

Two key consequences follow:

• Unlike parody and caricature, pastiche does not necessarily require humour or satire.
• Pastiche cannot be interpreted as a general fallback category for any artistic reuse of protected material.

The CJEU situates Article 5(3)(k) of the InfoSoc Directive within the broader objective of ensuring a fair balance between rightsholders and users. Copyright protection, as part of the right to property, must be reconciled with freedom of expression and freedom of the arts.

In this context, the CJEU confirms that sampling constitutes a form of artistic expression. At the same time, it reiterates that the rights of phonogram producers serve to protect the investment required for the production of phonograms.

The scope of “pastiche” and the CJEU’s ruling

Taking the above into account, the CJEU defines “pastiche” as a structured concept centred on a recognisable creative dialogue with an existing work. For a use to qualify as a pastiche, three cumulative elements must be met:

• Evocation with noticeable difference: the new work must refer to an existing work while clearly differing from it.
• Overt use: the borrowed material must be recognisable; concealed imitation and plagiarism are excluded.
• Creative dialogue: the use of characteristic elements must serve an artistic engagement with the original (e.g. tribute, stylistic imitation or humorous or critical engagement).

Furthermore, the CJEU adopts an objective test: it is not necessary to demonstrate that the user intended to create a pastiche. It suffices that the pastiche character is recognisable to an informed audience.

Comment

Pelham II refines the balance struck in Pelham I by reopening space for artistic reuse through the pastiche exception. However, the judgment leaves a crucial question insufficiently resolved: how far the creative transformation must go for a use to qualify as a “creative dialogue”.

The CJEU requires the use of “characteristic elements” in a way that engages with the original work, but it does not clearly indicate how substantial that creative contribution must be. It also remains unclear who exactly constitutes the “informed audience” capable of recognising the pastiche character. It remains therefore uncertain, for example, whether mere repositioning, i.e. taking a recognisable fragment and placing it in a new musical or stylistic context, is sufficient. If that were enough, the threshold for “creative dialogue” would be relatively low, potentially allowing users to rely on the pastiche exception even where the borrowed material remains largely unchanged and continues to carry the expressive core of the original work.

Without clearer guidance on the degree of transformation required, there is a real risk that the pastiche exception could, in practice, evolve into a free ticket to commercial exploitation, enabling users to appropriate recognisable and valuable elements of existing sound recordings without authorisation. Much will therefore depend on how national courts will interpret and apply the notion of “creative dialogue” in practice and whether they require a genuinely transformative contribution, rather than a mere contextual shift.