CG & YN v. Pelham GmbH (Pelham II) — CJEU Defines ‘Pastiche’ Exception for Music Sampling Under EU Copyright Law

Background

This case is the latest chapter in a nearly three-decade dispute between the founders of the legendary German electronic band Kraftwerk and the producers of the 1997 song “Nur mir.” The producers sampled approximately two seconds of a rhythm sequence from Kraftwerk’s 1977 track “Metall auf Metall” and looped it continuously in their song — without Kraftwerk’s consent.

The dispute has bounced between German courts and the CJEU since the early 2000s. In its first referral (Pelham I, 2019), the CJEU held that a phonogram producer can prevent sampling of even very short excerpts — unless the sample is modified beyond recognition. The German courts then asked a new question: does the “pastiche” exception in Article 5(3)(k) of the EU InfoSoc Directive (2001/29/EC) legalize sampling like this?

The German Federal Court of Justice (Bundesgerichtshof) referred two questions to the CJEU: (1) Is the pastiche exception a “catch-all” defense covering any artistic engagement with existing works, including sampling? (2) Must the user intend to create a pastiche, or is it enough that a knowledgeable listener would recognize the pastiche character?

The Court’s Holding

The Grand Chamber rejected the catch-all interpretation. “Pastiche” under EU law is an autonomous concept — it is neither a blanket license for creative reuse nor a narrow synonym for parody or caricature. The Court defined pastiche as a creation that:

• Evokes one or more existing works while being noticeably different from them;
• Uses characteristic elements of those works that are themselves protected by copyright (including via sampling); and
• Engages with those works in an artistic or creative dialogue that is recognizable as such — whether through stylistic imitation, tribute, humor, or critical commentary.

Crucially, the Court excluded concealed imitations and plagiarism from the definition. Even if such uses could claim free-expression protection in theory, allowing them without authorization under the pastiche exception would upset the “fair balance” between copyright holders’ rights and users’ fundamental freedoms.

On the second question, the Court held that the pastiche character need not be proven through the creator’s subjective intent. Instead, it is sufficient that the pastiche nature would be recognizable to a person familiar with the original work who has the requisite intellectual understanding — an objective standard that promotes legal certainty.

Key Takeaways

• Sampling can qualify as pastiche — but only when the new work enters into a recognizable artistic dialogue with the source material, not when it merely borrows sounds for convenience or commercial appeal.
• Pastiche is not a catch-all. The Court explicitly rejected the German lower court’s broad reading. The exception has real limits: the dialogue must be overt and recognizable, the use must involve characteristic copyrighted elements, and concealed copying is excluded.
• Objective test for “purpose.” Courts must evaluate pastiche from the perspective of a knowledgeable listener or viewer — the creator’s self-description of intent is not determinative.
• Three-step test still applies. Even when sampling qualifies as pastiche, Article 5(5) of the InfoSoc Directive requires that the use not conflict with normal exploitation of the original work or unreasonably prejudice the rights holder.

Why It Matters

Pelham II is the first CJEU Grand Chamber ruling to define “pastiche” — a term used but never defined in the 2001 InfoSoc Directive. The holding has immediate consequences for the music industry, where sampling is ubiquitous, and for the AI sector, where generative models create works that may evoke training data sources. By requiring a “recognizable artistic dialogue” rather than any form of creative reuse, the Court has drawn a line that protects rights holders from disguised copying while leaving real room for transformative art.

For producers, DJs, and remix artists across the EU, the practical question is now whether a given sample serves genuine creative dialogue or is merely decorative borrowing. For AI developers, the ruling raises hard questions: can an AI system’s output truly “engage in artistic dialogue” with works it was trained on? The Court’s emphasis on recognizability and overt engagement suggests that outputs which merely replicate stylistic features without acknowledging or transforming them may fall outside the pastiche exception.