ECJ on the Scope of Pastiche – Sampling Between Protection and Freedom
Update IP, Media & Technology No. 143
After more than two decades of legal disputes, the European Court of Justice, in its ruling of April 14, 2026 (Case No. C-0590/23), clarified a central concept of European copyright law: that of pastiche. The case once again stemmed from the conflict between the members of the band Kraftwerk and music producer Moses Pelham over the use of a short rhythmic fragment. The decision brings new momentum to a legal dispute that, like few others, has explored the boundaries of creative reference to third-party works.
The focus here is less on the specific sample and more on a fundamental question of copyright law: When is creative reference permissible – and when does it cross the line into use requiring consent?
The Core Issue: Creative Reference and Copyright Protection
Sampling, remixes, memes, and mashups make it clear how much artistic and communicative creation thrives on engagement with existing works. At the same time, copyright law grants authors and holders of related rights comprehensive exclusive exploitation rights. Any recognizable incorporation of protected elements therefore generally constitutes an infringement.
It would be unrealistic to limit modern forms of art and communication solely to completely original material. Especially in digital culture, creative value often lies in transformation, a shift in context, or deliberate recognition. This is where the concept of pastiche comes in. It describes uses that do not aim merely to adopt third-party content, but rather to engage in a recognizable creative dialogue with an existing work.
A pastiche can take various forms: it can appear to be inspired by or appreciative of the original, such as a stylistic homage, but – unlike caricature or parody – it need not be humorous or critical. The decisive factor is that the original work does not merely serve as a source of material, but as a point of reference for a distinct creative statement. Typical examples include altered film scenes in memes or texts that incorporate characteristic motifs of well-known authors and recontextualize them. The original remains recognizable but is placed in a new context.
Conversely, uses in which third-party works are merely appropriated to replace one’s own creative output or to capitalize on the original’s fame are not covered. The line is not drawn based on quantitative criteria such as length or scope, but is determined by whether the new work appears as an independent creative engagement.
How did the decision come about?
The legal dispute between Kraftwerk and Moses Pelham began in the late 1990s with a lawsuit filed in the Hamburg Regional Court. In 1997, Pelham had taken a roughly two-second rhythm sample from the Kraftwerk track “Metall auf Metall” for Sabrina Setlur’s song “Nur mir,” slightly altered it, and used it as a continuous loop. Kraftwerk viewed this as an infringement of their neighboring rights in the sound recording.
In the years that followed, the case went through the courts several times. After the European Court of Justice (ECJ) clarified in 2019 that the then-existing German regulation on “free use” was contrary to EU law, the Federal Court of Justice (BGH) ruled in 2020 that the sampling constituted an infringement of rights, at least for the period from 2002 to 2021.
The case took a new turn with the introduction of Section 51a of the German Copyright Act (UrhG) in 2021, which for the first time explicitly provides for an exception for caricature, parody, and pastiche. Since the legal dispute was still pending, it now had to be examined whether the sampling could be permissible under the new legal situation. The Higher Regional Court of Hamburg affirmed this and classified the use as a pastiche. The Federal Court of Justice (BGH) subsequently stayed the proceedings and referred the question of how the EU-law concept of pastiche is to be interpreted to the European Court of Justice (ECJ).
The ECJ’s Decision
The ECJ clarified that the concept of pastiche must be interpreted autonomously under EU law and should not be understood narrowly. It encompasses creations that evoke existing works but exhibit perceptible differences and use protected elements to engage in a recognizable artistic or creative dialogue with the original. This dialogue may consist, for example, of a stylistic reference, an homage, or even a critical engagement; a humorous intent is not required.
Of particular practical significance is that, for a use “for the purposes of a pastiche,” the user’s subjective intent is irrelevant. It is sufficient that the pastiche character is objectively recognizable to an audience familiar with the referenced work. The Court thus focuses on the effect of the new work and refrains from examining internal motives.
Significance for the case at hand and beyond
With this interpretation, the ECJ significantly lowers the thresholds for applying the pastiche exception. Sampling may also be permissible in principle, provided it is part of a recognizable creative engagement. However, determining where the line into impermissible appropriation is crossed in individual cases remains subject to the discretion of national courts.
For the Kraftwerk v. Pelham case, this means that the Federal Court of Justice must now conclusively determine whether the specific sampling in question qualifies as a pastiche since the entry into force of Section 51a of the German Copyright Act (UrhG). Regardless of the outcome, however, this is a decision of considerable significance for artistic practice and digital culture.
