By its judgment of 14 April 2026, the Court of Justice of the European Union (CJEU) further specified the rules governing the use of copyright-protected works in the context of music sampling and transformative uses (Case C-590/23 – Pelham et al. II). The Court addressed the scope of the “pastiche” exception under Section 51a of the German Copyright Act (UrhG). The interpretation of this exception will be decisive in determining to what extent existing works may be used in the creation of new works – including in the context of generative artificial intelligence. The implications of the judgment therefore extend far beyond sampling and affect artistic appropriations in painting, photography, and digital art (for more details, see the newsletter 11/24).
This is the second judgment of the CJEU and, overall, the twelfth decision in the long-running dispute “Metall auf Metall” between the band Kraftwerk and the music producer Moses Pelham.
Background of the Judgment
The dispute, ongoing since 1999, originates from the use of a two-second rhythmic sequence taken from the track “Metall auf Metall” by Kraftwerk.
This sequence was slightly slowed down, copied into the song “Nur mir” by Sabrina Setlur, and continuously looped without the consent of the rightholders. The sequence remained recognizable to listeners familiar with the original work, as it constituted the characteristic “germ cell” of the sound recording released by Kraftwerk in 1977.
The first CJEU judgment in the proceedings (29 July 2019, Case C-476/17 – Pelham et al. I) addressed whether the extraction of an audio fragment from a phonogram and its incorporation into another phonogram (so-called sampling) infringes the rights of the phonogram producer as an unlawful act of reproduction under Article 2 of the InfoSoc Directive 2001/29/EC, and to what extent the freedom of the arts of the user must be taken into account.
The CJEU held that an infringing act of reproduction exists where the extracted audio fragment is used “in a modified form recognizable upon listening” in a new work. Applying these principles, the Federal Court of Justice of Germany (BGH) affirmed that Pelham had reproduced the audio fragment. However, it remained unresolved whether such transformative use might fall under a copyright exception and thus be permissible.
The Questions Referred by the BGH
In its latest judgment, the CJEU—following a further reference from the BGH (Order of 14 September 2023, Case I ZR 74/22)—had to decide whether sampling may qualify as a “pastiche” within the meaning of Article 5(3)(k) of the InfoSoc Directive.
This issue had not been addressed in the earlier proceedings because the pastiche exception was only introduced into German law in June 2021 as Section 51a UrhG. Under this provision, reproduction, distribution, and communication to the public for the purpose of caricature, parody, and pastiche of a published work are permitted.
Since the introduction of the pastiche exception, uncertainty has existed as to the conditions under which transformative uses are lawful. While the concepts of parody and caricature have been shaped by German and European case law (notably the CJEU judgment in Deckmyn v Vandersteen), comparable jurisprudence on “pastiche” has been lacking.
The BGH therefore referred, inter alia, the following questions:
The Grounds of the Judgment
The Court held that the pastiche exception is not a residual category. Rather, it covers works that:
Such dialogue may take various forms, including stylistic imitation, homage, or humorous or critical engagement.
The Court further clarified that, for a use to be “for the purpose of” a pastiche, it is sufficient that the pastiche character is objectively recognizable to persons familiar with the original work. A subjective intention on the part of the user is not required.
Sampling may, under these conditions, qualify as a pastiche.
Assessment of the Judgment
In its reasoning, the CJEU builds upon its case law on parody. This is appropriate, as the joint reference to parody, caricature, and pastiche in Article 5(3)(k) InfoSoc Directive and Section 51a UrhG suggests that these concepts share essential characteristics—namely, evoking an existing work while differing from it.
By identifying three guiding criteria for pastiche, the Court enhances legal certainty in the previously contested area of transformative use. Nevertheless, uncertainties remain:
In particular, the judgment does not define the qualitative requirements for an “artistic or creative dialogue.” It remains unclear whether a communicative engagement—previously required under German doctrine of “free use” (Section 24(1) UrhG old version)—is necessary.
This raises the question whether uses are permissible where not the message but the artistic technique or strategy constitutes the engagement with the original work.
Due to the indeterminacy of this judicially developed criterion, there is a risk of divergent application across the European Union. At the same time, the openness of the concept allows flexible balancing of competing interests, notably the freedom of the arts and freedom of expression under Article 13 of the EU Charter of Fundamental Rights.
Interestingly, the CJEU lowers the threshold for qualifying as a pastiche by requiring only that the pastiche character be recognizable to those familiar with the original work. It does not require the perspective of a particularly perceptive or intellectually equipped observer, as suggested by the BGH.
Outlook
It is now for the BGH to decide the pending case in light of the CJEU’s guidance. In its referral decision, however, the BGH had already indicated that the use in “Nur mir” involved an artistic engagement with the borrowed rhythm sequence, which was transferred into a different musical genre and remained recognizable as a reference despite modifications.
It therefore appears likely that the sampling at issue will be classified as a pastiche.
It remains to be seen whether this will finally bring the decades-long dispute to an end. More broadly, the CJEU’s case law on pastiche opens new argumentative avenues for users seeking to justify the use of existing works as part of an artistic and communicative engagement.
Further information on the “Metall auf Metall” proceedings and on transformative uses of works in memes, remixes, sampling, etc., can be found in the doctoral thesis by
Wachtel, Derivative Works in the Digital Age. An Examination of Internet-Memes, 2022 bei Duncker & Humblot erschienen.
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