Musical sampling and the boundaries of the pastiche exception

28 Jul 2026

Court of Justice of the European Union, C-590/23 (Pelham II), 14 April 2026

Can a two-second sample constitute plagiarism of a musical track? This is the subject of the dispute that has lasted for over 20 years between the members of the German musical group Kraftwerk and Pelham GmbH over the unauthorized use of a sound fragment of approximately two seconds taken from the track “Metall auf Metall” (1977) and reiterated through sampling in the track “Nur mir” (1997). In this context, the CJEU judgment of April 14, 2026, intervened to once again define the contours and scope of the EU concept of pastiche, provided for by Art. 5(3)(k) of Directive 2001/29/EC, in the context of musical sampling.

In response to the first preliminary question from the referring court, the Court ruled that the concept of pastiche constitutes an autonomous concept of EU law and lacks any residual character. This exception indeed encompasses creations that evoke pre-existing works, while presenting perceptible differences from them, and which borrow protected characteristic elements in order to establish an artistic or creative dialogue. The latter – which may take various forms, such as overt stylistic imitation, homage, or humorous and critical confrontation – in observance of the necessary balance between intellectual property rights and the freedom of the arts, must nevertheless be manifest and cannot consist of concealed imitations or plagiarism.

With reference to the second question, pertaining to the subjective element, European case law has established the absolute irrelevance of the user’s subjective intent to create a pastiche, favouring instead a strictly objective assessment criterion. Therefore, a use is considered to be made “for the purpose” of pastiche if such character is objectively recognizable by a person who is familiar with the prior work from which the protected elements are borrowed.

Maria Vittoria Cardin