From humor to artistic dialogue: the CJEU redefines the concept of pastiche in sampling matters

CJEU, gr. ch., 14 Apr. 2026, C-590/23, CG and YN v. Pelham GmbH and Others

In a judgment of 14 April 2026, the Court of Justice of the European Union (CJEU) continues to develop its case-law on sampling by specifying the conditions under which the reproduction of a musical excerpt by sampling may benefit from the pastiche exception provided for in Article 5(3)(k) of Directive 2001/29/EC.

The case forms part of the long-running dispute between the members of the Kraftwerk group and the Pelham company concerning the track “Nur mir“, in which a rhythmic sequence of about two seconds from the track “Metall auf Metall” had been incorporated by way of sampling.

The CJEU first recalls that the concept of pastiche, which is not defined by Directive 2001/29, constitutes an autonomous concept of Union law and must therefore be interpreted uniformly across all Member States.

It then observes that the term, which is not commonly used in everyday language, has multiple meanings. It is therefore necessary to consider the context in which it occurs and the objective pursued by Article 5(3)(k) of Directive 2001/29/EC.

As regards the context, the CJEU refuses to consider pastiche as a parody or a caricature. If the three notions evoke an existing work, each must retain its own scope. As regards the objective, the Article 5 aims to reconcile the protection of copyright and related rights with freedom of expression and artistic freedom as well as the general interest.

The CJEU therefore concludes that the concept of pastiche is not residual but rather covers creations that evoke one or more existing works by using some of their characteristic elements protected by copyright, while presenting perceptible differences from them, with the aim of engaging in a form of artistic or creative dialogue with these works that is recognizable as such.

For the CJEU, this artistic or creative dialogue can take different forms, including stylistic imitation, homage or humorous or critical confrontation with the existing work.

After setting out this analysis, the CJEU acknowledges that sampling can fall under the exception of pastiche.

It points out in this regard that, although sampling constitutes a form of artistic expression falling within the scope of the freedom of the arts, it may also infringe the rights of the phonogram producer, who may object to the inclusion of a recognizable sample of its recording in another phonogram.

According to the CJEU, the balance between these competing interests is ensured when sampling is used in a new work with the aim of engaging in an identifiable artistic or creative dialogue with the existing work.

Finally, the CJEU provides an important clarification regarding the conditions for assessing pastiche. It considers that it is not necessary to establish the subjective intention of the user. It is sufficient that the character of pastiche is objectively recognizable by a person who knows the existing work from which elements are borrowed.

With this decision, the CJEU endorses an autonomous conception of pastiche, based not on humor – as part of the French doctrine had tended to assume – but on the existence of a recognizable artistic or creative dialogue with a pre-existing work. However, its practical scope remains to be determined. The case has now been referred back to the Bundesgerichtshof, which will have to assess whether the sampling meets the conditions thus defined. More broadly, national courts across Europe will clarify, on a case-by-case basis, when and how this exception applies. Pending further judicial clarification, reliance on the pastiche exception calls for careful consideration.