On 14 April 2026, the ECJ once again ruled in the Pelham case concerning the musical work ‘Metall auf Metall’ and the sampling of parts of that work in another musical composition.
In its 29 July 2019 judgment in the Pelham and Others case (C-476/17), following a reference from the Federal Court of Justice (BGH), the ECJ stated that sampling may constitute an infringement of the rights of the phonogram producer if carried out without their consent.
The ECJ has now been asked, in light of the legal situation since 7 June 2021, whether sampling is permissible for the purpose of ‘pastiches’. On that date, Section 51a of the German Copyright Act (UrhG) came into force in accordance with Article 5(3)(k) of Directive 2001/29/EC (the ‘InfoSoc Directive’). The provision reads:
‘The reproduction, distribution and public performance of a published work for the purposes of caricature, parody and pastiche are permitted.’
The Federal Court of Justice (BGH) therefore asked whether sampling a short excerpt from an original piece of music could be permitted as a pastiche. According to the Higher Regional Court of Hamburg, there had been artistic engagement with the rhythmic sequence, which had been transferred from the musical piece ‘Metall auf Metall’ into another genre. Despite a reduction in tempo and a shift in metre, it remained recognisable as an allusion to the original.
The Court of Justice notes that the pastiche exception covers creations that resemble one or more existing works but also exhibit noticeable differences, and which utilise some of their copyright-protected elements through ‘sampling’ to engage in an artistic or creative dialogue with those works that is recognisable as such. This dialogue may take various forms, including overt imitation of the style of the original work, paying tribute to it, or humorous or critical engagement with it. The concept of pastiche expressly excludes covert imitation of protected works or plagiarism.
The Court concludes that the ‘pastiche’ exception is not a catch-all provision, but is aimed at creations that resemble one or more existing works while also exhibiting differences that are clearly discernible, with the intention of initiating an artistic or creative dialogue with those works. The Court clarifies that since only the use of elements of a work that are protected by copyright, either individually or collectively, requires the consent of the rightholder, the ‘pastiche’ exception must permit the use of such elements to a certain extent, otherwise it would be ineffective. It adds that this dialogue may take various forms, including stylistic imitation, homage, or humorous or critical engagement.
For a use to be considered ‘for the purposes of’ pastiche, it is sufficient for the character of ‘pastiche’ to be recognisable to individuals familiar with the existing work from which these elements are taken. Therefore, it is not necessary to establish that the user intended to use the work for this purpose.
Consequently, sampling is likely to be permissible as a pastiche under Section 51a of the German Copyright Act (UrhG).
