Background
This case is the sequel to the CJEU’s 2019 Pelham I ruling, which established that even a very short sample of a phonogram constitutes a “reproduction” requiring authorization. The underlying dispute dates to 1997, when producer Moses Pelham sampled approximately two seconds from Kraftwerk’s 1977 track “Metall auf Metall,” looping it throughout the track “Nur mir” for rapper Sabrina Setlur. Kraftwerk members CG and YN sued Pelham GmbH for infringement of their rights as phonogram producers.
After the 2019 ruling confirmed that sampling constitutes reproduction, the German Federal Court of Justice (Bundesgerichtshof) referred new questions back to the CJEU, asking whether the “pastiche” exception in Article 5(3)(k) of the InfoSoc Directive could justify the unauthorized sampling. This triggered the first CJEU Grand Chamber interpretation of the pastiche exception — a question with massive implications for music, art, advertising, and AI-generated content.
The Court’s Holding
The Grand Chamber ruled that “pastiche” is an autonomous concept of EU law that must be interpreted uniformly across all Member States. The Court defined pastiche as a creation that:
- Evokes one or more existing works — the source material must be recognizable in the new creation
- Remains perceptibly different from the original — the new work cannot simply be a copy
- Establishes an objectively recognizable artistic or creative dialogue with the source material
The exception covers various forms of creative engagement including stylistic imitations, tributes, homages, and works that engage with the original critically, humorously, or appreciatively. Crucially, the Court held that subjective intent is not required — what matters is whether the resulting creation objectively demonstrates a creative dialogue with the source work, not whether the creator intended to produce a pastiche.
However, the Court emphasized that the pastiche exception is not a blanket license for sampling. It is subject to the “three-step test” under Article 5(5) of the InfoSoc Directive: the use must be a special case, must not conflict with normal exploitation of the work, and must not unreasonably prejudice the legitimate interests of the rights holder. The national court must apply this test to the facts.
Key Takeaways
- Music sampling can now be justified under the pastiche exception across the EU, provided the new work creates an objectively recognizable creative dialogue with the source and meets the three-step test.
- The pastiche concept extends far beyond parody and caricature — it covers any creative reengagement with existing works, including tributes, homages, and stylistic imitations.
- No subjective intent is required: courts look at the objective character of the resulting work, not the creator’s stated purpose.
- The ruling has direct implications for generative AI: if an AI-generated work evokes recognizable source material while remaining perceptibly different and establishing creative dialogue, it could potentially qualify as pastiche — a question the CJEU acknowledged is now being litigated in Like Company v. Google (C-417/23).
Why It Matters
After nearly three decades of litigation between Kraftwerk and Moses Pelham, this ruling finally provides a clear EU framework for when sampling — and by extension, other forms of creative reuse — can proceed without authorization. For the music industry, it replaces a patchwork of national interpretations with a single EU standard. For the tech and AI sector, the pastiche exception may prove even more significant: as generative AI systems increasingly produce works that reference, remix, and build upon existing creative material, the question of whether such outputs constitute pastiche will become central to EU copyright law. The Court’s explicit acknowledgment of the AI dimension signals that this framework was designed with the future in mind.