Artistic Freedom at Stake in Pelham II: The ECJ Explains What a ‘Pastiche’ Is
1 Introduction
On 14 April 2026, the European Court of Justice (ECJ) gave its much-anticipated judgment in Pelham (Concept of ‘pastiche), its second ruling in the Pelham-saga (also known under its German name: Metall auf Metall (Metal on metal)). These proceedings, in which the first national judgment was delivered already in 2004,[1] concern the use of a two-second sample of a metallic beat from a sound recording by Kraftwerk in the song Nur mir by Moses Pelham. The main question in these proceedings is whether this use infringes on the exclusive rights of the phonogram producer in the recording by Kraftwerk.
In its first ruling, the ECJ held, inter alia, (i) that the use of a two-second sample from a sound recording constitutes a reproduction thereof unless that sample is used in a new work ‘in a modified form unrecognisable to the ear’ (paras 29–31) and (ii) that such a use can only qualify as a quotation for the purpose of the quotation exception if it is possible to identify the quoted work in the quoting work, and the quoting work has the intention of entering into a dialogue with the quoted work (paras 72-74). Following this ruling, the national courts concluded that, insofar as the case falls within the temporal scope of EU law, the use by Moses Pelham of the sample in question constitutes a reproduction that does not qualify as a lawful quotation.
The last remaining vestige of hope for Moses Pelham lies in the exception that permits use for the purpose of ‘pastiche’. This exception originates in the Article 5(3)(k) of the InfoSoc Directive, which permits limitation and exceptions ‘for the purpose of caricature, parody or pastiche’. In doubt about the interpretation of this concept, the German Federal Court of Justice (Bundesgerichtshof, BGH) once again referred the case to Luxembourg to clarify its meaning. The debate between the parties focused, in essence, on the question of whether that concept must be construed narrowly, requiring stylistic imitation of or some kind of dialogue with the source material, or more broadly as exempting any use engaging in ‘artistic confrontation’ with the source material.
This short annotation briefly discusses the Advocate General’s Opinion (section 2) and the ECJ’s judgment (section 3), before concluding with some observations (section 4).
2 The AG’s Opinion
In his Opinion, which I discussed in more detail here, AG Emiliou rejected the broader understanding of the concept of pastiche. Instead, in his view this concept must be construed to cover ‘an artistic creation which (i) evokes an existing work, by adopting its distinctive ‘aesthetic language’ while (ii) being noticeably different from the source imitated, and (iii) is intended to be recognised as an imitation’ (para 133). Imitation of style is central to the AG’s understanding of pastiche. He argues that without the requirement that a pastiche involves stylistic imitation, thus extending its scope to any artistic re-use of protected subject matter, the scope of the exception would become so broad as to render the exceptions for parody and caricature redundant and transform the pastiche exception into an open-ended clause it was not intended to be (paras 68–74). He rejected the argument that such as a broader understanding is justified to safeguard the enjoyment of the right to freedom of expression and the freedom of the arts as requiring an interpretation contra legem (paras 76–79).
Notably, however, the AG also separately considered the compatibility of the current state of EU copyright law as a whole, including the proposed interpretation of the concept of pastiche, with EU fundamental rights. He concluded, in particular as regards the use of short samples from sound recordings such as in this case, which likely would not be permitted, that the limitation placed on artistic freedom is manifestly disproportionate (paras 111–122). On the one hand, it would significantly interfere with the freedom of the arts, as protected by Article 13 of the Charter of Fundamental Rights of the European Union (the Charter). On the other hand, permitting such uses of sound recordings would not undermine the purpose of the rights granted to phonogram producers to protect them against the creation and marketing of illicit substitute products.
He suggested that the resulting incompatibility with the EU Charter can be remedied in two ways. First, the ECJ could reconsider the scope of the reproduction right of phonogram producers. Whereas in Pelham I the ECJ construed this to cover any use of sound recordings, however small, unless used in a new work in a way unrecognisable to the ear, the AG proposed adopting a clearer de minimis rule that excludes any uses that do not undermine the producer’s ability to recoup their investment (para 124). Alternatively, he suggested that the legislature intervene (para 125).
3 The ECJ’s judgment
Like its AG, the ECJ rejects the broader understanding of the concept of pastiche. Considering the meaning in everyday language ambiguous, it bases its interpretation on a contextual and purposive interpretation. Regarding the context, the ECJ noted that the three concepts of pastiche, parody and caricature in Article 5(3)(k) of the InfoSoc Directive share an essential characteristic: they concerns uses that evoke an existing work while being noticeably different from it (para 40). Moreover, to avoid rendering the parody and caricature exceptions redundant, the concept of pastiche cannot be construed so as to cover every creation that fulfils that common characteristic (para 43).
Referring to the purpose of the Directive to ensure a fair balance between the interests and fundamental rights of users and interest of right holders in the protection of their intellectual property, the ECJ holds that pastiche must be understood to cover ‘creations which evoke one or more existing works, while being noticeably different from them, in order to engage with those works in a form of artistic or creative dialogue that is recognisable as such’ (para 50). The ECJ does not really explain why specifically this interpretation, focusing on the presence of a ‘dialogue’, does justice to that fair balance, other than suggesting that the concept of pastiche should not be construed so as to cover plagiarism, i.e. concealed imitations not recognisable as such (para 49). The Court clarifies that for there to be such a ‘dialogue’ the elements used in the new creation must be ‘characteristic’ of the work(s) from which they originate (para 51). Moreover, the ECJ considers that this dialogue can occur in different ways, particularly a stylistic imitation of the work(s) from which is borrowed, a tribute to them, or humorous or critical engagement (para 53). The ECJ therefore does draw slightly wider boundaries than the AG, for whom stylistic imitation was the essential characteristic of pastiche.
Whether something is a pastiche, that is whether it has the aforementioned characteristics, must be determined objectively. This means that ‘the “pastiche” nature must be recognisable for persons familiar with the existing work from which those elements have been borrowed’ (para 61).
The ECJ remains ambiguous about what this means for sampling such as in this case. It merely concludes by considering that where the pastiche exception covers reproductions by means of sampling that fulfil the conditions identified by the Court, that it ensures a fair balance between the right to the freedom of the arts and the protection of copyright (para 57). This can be understood as a rebuke to AG Emiliou: the system of copyright does not fall short of the requirements imposed by the Charter.
4 Comments
The concept of pastiche
For those hoping that the ECJ would take the opportunity to inject some flexibility into EU copyright, this decision may be disappointing. Although the definition adopted by the ECJ is slightly broader than the one proposed to it by the AG, it nevertheless leaves uses made of phonograms such as the one in this case in a precarious position. On the one hand, the requirement that a pastiche may only use ‘characteristic’ elements from protected subject matter significantly limits the artistic freedom to choose how to engage with that subject matter. On the other hand, the requirement that the use must engage in an artistic or creative dialogue, recognisable as such, may exclude many artistic uses, in particular if the notion of dialogue is construed narrowly. It was, in essence, a similar dialogue requirement in respect of the quotation exception – i.e. that there can only be a lawful quotation if there is an intention to enter into a dialogue (see Pelham I, paras 71 and 73) – that precluded its application in this case (see the ruling by the BGH, para 55, considering the quotation was not recognisable as such).
If, however, the notion of artistic dialogue is construed more liberally, specifically by taking account of the specific characteristics of the artistic domain in question, the pastiche exception may nevertheless provide considerable leeway for creative uses such as sampling. Notably, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held in these proceedings, before they were referred to the ECJ for the first time, that a proper balancing of rights protected by the German Basic Law required that the use in question be permitted by interpreting ambiguous provisions in the German Copyright Act accordingly. Crucially, the BVerfG pointed to the importance of the ability of borrowing artists to enter into an ‘artistic dialogue’ (para 86), and emphasised in this context the specific characteristics of hip-hop – the genre to which Nur mir belongs – and the creative role sampling plays in it (para 99).[2]
The relationship to the Charter
Another point of interest concerns the compatibility of the system of rights and exceptions constructed by EU copyright law, as interpreted by the ECJ, with the Charter. As noted in section 2, AG Emiliou devoted a lot of attention to this issue, concluding that this system is at risk of violating the Charter. In his view, this alleged incompatibility in the context of the rights granted to phonogram producers is essentially a result of the broad interpretation given to their right of reproduction in Pelham I as covering any recognisable parts, however small. Consequently, also the copying of a recognisable sample that does not undermine the ability of the phonogram producer to obtain a satisfactory return on their investment constitutes a reproduction. According to the AG, however, this ability is only really undermined where the sample used results in an object that substitutes for the original and therefore is capable of diminishing the sales of the original phonogram (paras 116–117). Where this is not the case, the restriction of the freedom of the arts cannot be justified.
The ECJ clearly is of a different view. It confirms that the taking of any recognisable sample constitutes a reproduction of the phonogram from which it is taken, and that this scope of protection is ‘consistent with the objective … to protect [the] investment [of the producer of that phonogram’ (para 56). Unlike the AG, the ECJ views the taking of recognisable samples, even small ones, as capable of undermining that investment and the control over them as an important source of revenue to ensure recoupment of investment.
Of course, this is potentially also true for samples that are unrecognisable – these also constitute a potential licensing market that can contribute to the recouping of investment – but the Court once again ignores this distinction. Similarly, the ECJ does not adequately explain why the resulting limitations placed on the freedom of the arts in respect of (recognisable) uses that fall outside the scope of existing exceptions strikes a fair balance. Once again, the ECJ simply asserts this to be the case. It therefore did not, at least not in a satisfactory way, address the justified criticism of the AG that ‘it did not explain (i) how any ‘recognisable’ sample, even a very short one, could interfere with the producer’s opportunity to receive satisfactory returns on his or her investment, and (ii) why the economic interests of the producer should outweigh the socially fundamental freedom of the arts even with respect to short extracts’ (para 122).
Charitably, one could view the recognisable/unrecognisable dichotomy as an attempt to introduce a workable and clear standard. But one might ask whether a focus on substitutability could not have played a similar role, as per the AG’s suggestion. It should be recalled that the ECJ essentially adopted such a focus in Pelham I when interpreting the distribution right of phonogram producers. The Court held that that right only concerns the distribution of objects that ‘reproduce all or a substantial part of that phonogram’ (para 55). The ECJ reached this conclusion in part by considering that objects that do not reproduce a significant part of a phonogram are not intended to replace lawful copies of that phonogram and therefore are not ‘capable of significantly decreasing the revenue that they receive by making phonograms available’ (paras 45–47).
This leads to the curious situation that copying a sample when making a new musical work constitutes a reproduction if it is recognisable, even if it is an insubstantial part – justified by the ECJ because it would undermine the ability to recoup investment – whereas the distribution of that new work does not amount to an unlawful act of distribution if that sample constitutes an insubstantial part, because that distribution would not significantly reduce its right holder’s revenue. But if the latter is true, this begs the question of whether the broader interpretation of the reproduction right is really justified.
The AG’s best efforts notwithstanding, the ECJ could not be moved to change its view. Accordingly, if EU copyright law is to offer greater breathing space for artistic re-use of protected subject matter, it will be for the EU legislature to take action. Whether it is up to that task remains to be seen.
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[1] Regional Court of Hamburg, 8 October 2004, 308 O 90/99.
[2] In my comment on the AG’s Opinion (section 2.2), I discuss in greater detail whether a broader interpretation of the concept of pastiche is really at odds with a contextual and purposive interpretation.
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