Pelham v. Hütter (Pelham II) — CJEU Grand Chamber Defines ‘Pastiche’ Exception for Music Sampling, Requires ‘Recognizable Artistic Dialogue’

Background

This case is the latest chapter in what may be the longest-running copyright dispute in European music law — a saga that began nearly three decades ago. In 1997, producer Moses Pelham released “Nur mir,” a hip-hop track that contains an approximately two-second rhythm sequence sampled from Kraftwerk’s 1977 electronic masterpiece “Metall auf Metall.” The sample was looped continuously throughout the song. The founders of Kraftwerk sued, launching litigation that has now passed through every level of the German courts, the German Constitutional Court, and the CJEU — twice.

In 2019, the CJEU’s first Pelham ruling (C-476/17) established that phonogram producers can prevent sampling even of very short sequences unless the sample is modified to be unrecognizable. But the Court noted the potential relevance of the “pastiche” exception under Article 5(3)(k) of the Copyright Directive without interpreting it. After further German proceedings in which a lower court found the sampling constituted pastiche, the Bundesgerichtshof referred two questions to the CJEU: Is the pastiche exception a catch-all covering any artistic engagement with existing works? And does it require subjective intent?

The Court’s Holding

The Grand Chamber held that the pastiche exception is not a catch-all but covers creations that meet four requirements:

1. The new work must evoke one or more existing works while being noticeably different from them.
2. The new work must use characteristic elements of the source work that are protected by copyright (including through sampling).
3. The use must be for the purpose of engaging with the source work in an artistic or creative dialogue that is recognizable as such.
4. That dialogue can take different forms — overt stylistic imitation, tribute, or humorous or critical engagement — but it must be overt. Concealed imitations and plagiarism are excluded.

On the intent question, the Court held that no subjective intention is required. The test is purely objective: whether the pastiche nature would be recognizable to a person familiar with the source work who has the intellectual understanding to perceive it.

The Court’s reasoning rested on the need for fair balance between copyright holders’ exclusive rights and users’ fundamental freedoms of expression and artistic creation under the EU Charter. It rejected the catch-all interpretation because Article 5(3)(k) lists caricature, parody, and pastiche as separate concepts, each requiring independent meaning. It also rejected an overly narrow reading that would limit pastiche to humour or mockery (which would collapse it into parody). The “recognizable artistic dialogue” standard occupies the middle ground.

Key Takeaways

• Sampling can qualify as pastiche — but not automatically. The sampled elements must be used overtly and in a manner that creates recognizable artistic dialogue with the source, not merely borrowed for their sonic utility.
• The overt/concealed distinction is pivotal: Only overt forms of creative engagement qualify. Concealed imitations — where the listener cannot recognize the source — are excluded from the exception, even if they might engage freedom of expression.
• No intent required: The objective test (recognizable to a listener familiar with the source) is critical for the AI context. Since AI has no subjective intent, an intent-based test would have categorically excluded AI outputs.
• National courts must apply the standard case-by-case: The German courts must now determine whether the specific use of the Kraftwerk sample in “Nur mir” meets the “recognizable artistic dialogue” test — the same factual question that has been litigated for 25 years.

Why It Matters

Pelham II is the most significant European copyright decision of 2026 so far, with implications far beyond music sampling. For remix culture, the ruling provides the first CJEU framework for lawful creative reuse: works that visibly engage with their sources — mashups, tributes, stylistic homages — have firmer legal footing, while works that simply appropriate without acknowledgment do not. For the music industry, the ruling does not fundamentally alter licensing practices (as German commentators have noted), since each case requires individual assessment.

The implications for AI-generated content may be the most consequential. As the TechnoLlama blog observed, the Court’s definition is “broad enough to cover a substantial chunk of what generative AI actually does.” An AI image generator prompted to produce “a llama in the style of Gustav Klimt” creates an output that evokes a known work, is noticeably different, uses characteristic elements, and arguably engages in recognizable creative dialogue. The absence of an intent requirement is particularly significant. However, the “overt” requirement cuts both ways: AI outputs that closely mimic a recognizable style may qualify, but outputs that incorporate training data in concealed ways — the more common scenario — would not. The Court delivered this ruling the same month as the first CJEU hearing on generative AI and copyright (Like Company v. Google), signaling that these questions are converging rapidly.