Pelham II case: CJEU redefines the "pastiche" exception and its application to sampling

The Court of Justice of the EU ("CJEU") has delivered one of the most eagerly awaited judgments in copyright matters, clarifying the scope of the "caricature, parody or pastiche" exception in Article 5(3)(k) of Directive 2001/29. The ruling, handed down on 14 April 2026 (Case C 590/23, Pelham II), marks a turning point for business models based on creative re-use of protected works, particularly in the musical and audiovisual fields.

Key points:

• Context of the litigation: the case pits the founding members of Kraftwerk against the producers and authors of the song "Nur mir" (1997), for sampling a recognisable rhythmic sequence of approximately two seconds from the phonogram "Metall auf Metall". The question was whether that fragment, being recognisable, could be used without permission as falling within the "pastiche" exception.
• What does the CJEU mean by "pastiche":the Court states that "pastiche" is not a creative catch-all, ruling out a broad interpretation that legitimises any artistic use of pre-existing works. But it also clarifies that there need not be humour or mockery. According to the CJEU, there is "pastiche" when the new work:
  • 1. evokes one or more pre-existing works;
  • 2. is perceptibly different; and
  • 3. uses protected characteristic elements to engage in a recognisable "artistic or creative dialogue" with the work(s) evoked (e.g. homage, open imitation of style or criticism).
• Sampling permitted, subject to conditions: the judgment confirms that sampling constitutes a form of artistic expression protected by artistic freedom, but recalls that, in principle, it encroaches on the exclusive right of the phonogram producer when the fragment is recognisable. Unauthorised use will only be lawful if it is part of a creation that objectively fits within the defined concept of "pastiche".
• No requirement to prove the author's subjective intention: the Court opts for an objective criterion. It is not necessary to prove that the author had the conscious intention to make a "pastiche"; it is sufficient that this nature is recognisable to a person familiar with the original work.
• Limits and balance of rights: the ruling insists that intellectual property rights are not absolute and must be balanced with freedom of expression and freedom of artistic creation, avoiding excessive protection that would empty these freedoms of content.

In short, Pelham II defines more precisely the criteria for permissible unauthorised uses and confirms that creativity in dialogue with pre-existing works remains possible, but does not fall outside the structural limits of European copyright law.

Access the information:

• Judgment of the Grand Chamber of the CJEU of 14 April 2026 (C-590/23, Pelham II).
• Directive 2001/29