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What did the CJEU decide in ‘Pelham II’?
CJEU (Grand Chamber), Judgment of 14 April 2026 – C-590/23
Almost thirty years after the release of the track ‘Nur mir’, the Court of Justice of the European Union (CJEU) delivered its judgment on 14 April 2026 in Case C-590/23, defining the contours of the pastiche exception in European copyright law for the first time in a binding manner. The Grand Chamber addressed two key questions referred by the Federal Court of Justice:
- What is a pastiche? and
- Must the user demonstrate an intention to create a pastiche?
The answers are clear – though perhaps not unambiguous in every case: the pastiche exception is not a catch-all for creative appropriations of any kind. It requires a recognisable artistic or creative dialogue with the source work. The user need not prove a subjective intention; however, the dialogue must be objectively recognisable.
Background: Proceedings through all instances
The starting point is a two-second rhythm. The founders of the band Kraftwerk established in 1997 that a rhythm sequence from their track ‘Metall auf Metall’ (1977) had been electronically copied (sampled) and used in a continuous loop in Pelham’s track ‘Nur mir’ – without consent and without a licence.
What followed was one of the longest copyright proceedings in German legal history, passing through the Regional Court Hamburg, the Higher Regional Court Hamburg, the Federal Court of Justice, the Federal Constitutional Court, and the CJEU – where the case now arrived for the second time. The first Luxembourg judgment (CJEU C-476/17, ‘Pelham I’, 29 July 2019) had already held that the phonogram producer’s exclusive right to authorise or prohibit reproduction covers even the shortest samples, provided the sample is recognisable to the ear. The former ‘free use’ exception under § 24 UrhG was incompatible with EU law to that extent.
In its judgment of 28 April 2022, the Higher Regional Court Hamburg developed a three-period solution:
- For the period up to 22 December 2002 (expiry of the transposition period for Directive 2001/29/EC), national law applied and, by virtue of the former § 24 UrhG (German Copyright Act): no infringement.
- From the expiry of the transposition period until the entry into force of Paragraph 51a UrhG on 7 June 2021 (the German implementation of the pastiche exception), § 85 UrhG was to be interpreted in conformity with EU law: infringement of the reproduction right even upon reproduction of the shortest parts.
- From the entry into force of Paragraph 51a UrhG on 7 June 2021: the pastiche exception applied – no infringement. It was against this ruling that Kraftwerk brought their appeal on a point of law, prompting the Federal Court of Justice to make the present reference to the CJEU.
What is a ‘pastiche’ within the meaning of copyright law?
The concept of ‘pastiche’ is not defined in Directive 2001/29/EC. The CJEU treats it as an autonomous concept of EU law, to be interpreted uniformly throughout the Union in accordance with its usual meaning in everyday language, its context and the objectives of the provision.
The Court notes first that caricature, parody and pastiche are listed together on an equal footing in Article 5(3)(k) of the InfoSoc Directive. Each concept must have independent scope – the principle of effectiveness (effet utile) prohibits reading any one of them as a mere sub-category of another.
The four essential requirements of a pastiche (paras 49–53 of the judgment):
A pastiche requires, according to the judgment, that
- the use is open and recognisable as such – covert imitations and plagiarism do not fall within this exception;
- one or more existing works (characteristic, copyright-protected elements of the original) are recognisable in the new creation;
- at the same time, noticeable differences exist; and
- the result enters into an artistic or creative dialogue with the original that is recognisable as such – for example in the form of a stylistic imitation, a tribute, or a humorous or critical engagement.
Sampling can fall within the pastiche exception where and to the extent that these four requirements are met cumulatively. Sampling without a recognisable dialogue does not suffice.
Must the user demonstrate a pastiche intention?
No. The CJEU holds that the pastiche character must be assessed on the basis of objective criteria. It is sufficient that the dialogue is recognisable to a person who is familiar with the source work. A proven subjective intention on the part of the user is not required – a finding that promotes legal certainty and prevents the exception from being stretched by ex post claims of intent.
How does the judgment fit into the systematic framework of copyright law?
The decision significantly sharpens the dividing lines between the relevant provisions of German copyright law. The following overview shows which rule applies to which situation:
Verbatim reproduction of protected elements constitutes reproduction within the meaning of § 16 UrhG (for phonograms additionally § 85 UrhG). The pastiche exception requires noticeable differences and is inapplicable from the outset.
Recognisable borrowing with noticeable differences but without sufficient creative distance – the original shines through in the new work, which otherwise adds no artistic value of its own: dependent adaptation under §§ 23(1) sentence 1, 16 UrhG, requiring the consent of the rightholder.
Recognisable borrowing with noticeable differences and sufficient creative distance, combined with the quality of an original work (§ 2(2) UrhG) – the new work constitutes an independent creation: § 23(1) sentence 2 UrhG applies and the obligation to obtain consent lapses. This corresponds to the former free use doctrine, which the Federal Court of Justice continues to apply in copyright law (BGH GRUR 2023 – Porsche 911, para. 52). For related rights it is no longer applicable following Pelham I (2019).
Recognisable borrowing with noticeable differences and sufficient creative distance, but without the quality of an original work – for example because the result is entirely AI-generated and lacks a sufficient human creative contribution (§ 2(2) UrhG): § 23(1) sentence 2 UrhG does not apply, since the provision – as the Federal Court of Justice expressly clarified in the Porsche 911 decision (para. 52) – presupposes that the new work has the quality of an original work. The obligation to obtain consent under §§ 23(1) sentence 1, 16 UrhG remains.
Paragraph 51a UrhG – the key difference from the free use doctrine: The pastiche exception – unlike § 23(1) sentence 2 UrhG – does not require a personal intellectual creation on the part of the new work. Works not rising to the level of copyright protection may in principle invoke the exception, provided the four pastiche requirements are met.
Paragraph 51a UrhG is nonetheless subject to the three-step test under Article 5(5) of Directive 2001/29: the exception may only apply in certain special cases, must not conflict with a normal exploitation of the work, and must not unreasonably prejudice the legitimate interests of the rightholder. The second step in particular may prove problematic in the context of large-scale or commercial use. The further question arises whether an AI system can invoke the exceptions grounded in the protection of the freedom of the arts at all. The Regional Court Munich rejected this in its judgment of 11 November 2025 (ChatGPT).
What questions does the judgment leave open?
Standard of recognisability: The CJEU specifies that the pastiche dialogue must be recognisable to a person who is familiar with the original – not necessarily to the average listener. Defining who belongs to the relevant reference group will be a matter for determination in individual cases.
Demarcation from the quotation right: Article 5(3)(d) of Directive 2001/29/EC (§ 51 UrhG) equally requires recognisability and interaction with the source work. The practical overlap between the two exceptions is considerable; a clear line of demarcation is lacking.
AI-generated content and Paragraph 51a UrhG: Since the pastiche exception may not require the quality of an original work, it is in principle accessible to AI-generated outputs – provided that a human deliberately controls the system and the output meets the pastiche requirements. The human user as a legal subject may invoke the exception; the AI itself is not a holder of fundamental rights and cannot rely on the freedom of the arts (Article 5(3) of the Basic Law; Article 13 of the Charter of Fundamental Rights). Large-scale AI production also risks conflicting with the second step of the three-step test.
Three-step test and commercial sampling: Neither Pelham I nor Pelham II resolve definitively whether intensive commercial loop-sampling conflicts with the normal exploitation of the source work. That remains a live issue.
Frequently asked questions (FAQ)
Is sampling now generally permitted without a licence?
No. There is no blanket licence. Paragraph 51a UrhG may authorise sampling where all four pastiche requirements are met cumulatively – in particular the recognisable artistic or creative dialogue. A loop without creative engagement with the source work will generally not suffice.
From when does the pastiche exception apply in Germany?
Paragraph 51a UrhG entered into force on 7 June 2021. The Higher Regional Court Hamburg had already treated sampling from that date as lawful. The CJEU has now established the binding EU-law standards for the concept of pastiche.
What does the judgment mean for AI-generated music or text?
AI output lacking a sufficient human creative contribution does not constitute a work within the meaning of § 2(2) UrhG. § 23(1) sentence 2 UrhG (free use) therefore does not apply – even where the AI output maintains sufficient creative distance from the original. Paragraph 51a UrhG may nonetheless be applicable where a human deliberately controls the system and the output enters into a recognisable artistic dialogue with the source work.
Does the judgment also apply to publishers, film producers and other rights holders?
Yes. Article 5(3)(k) of Directive 2001/29/EC and Paragraph 51a UrhG apply to all categories of copyright-protected works and, by virtue of Paragraphs 83 and 85(4) UrhG, mutatis mutandis to the related rights of performers and phonogram producers. The principles of the judgment are relevant across industries – to publishers as much as to filmmakers, photographers and software developers.
Practical note for rights holders and users
The judgment does not affect only the music industry. Whenever recognisable elements are taken from an existing work – whether a musical composition, novel, screenplay, photograph, database or software – and incorporated into a new creation, questions of reproduction, adaptation, free use or exception arise. The CJEU’s judgment provides a clear analytical framework for answering them.
For rights holders: For music publishers, phonogram producers, book publishers, film producers, photographers, software providers and others, Pelham II confirms that the protection of their works and related rights remains comprehensive. Paragraph 51a UrhG does not create a broad opening for the unlicensed use of protected content. Rights holders who identify that their works are being used without a licence in new productions should seek advice on whether all the pastiche requirements are genuinely satisfied – in particular whether a recognisable artistic dialogue exists, or whether the use in fact requires consent.
For users and creative industries: For media companies, agencies, streaming services, games producers, AI providers and others working with protected content, clear licensing strategies remain the most reliable path to legal certainty. The pastiche exception can assist in individual cases; it is not a free pass. Assessment on a case-by-case basis by national courts remains indispensable.
We advise rights holders and users across all industries on copyright matters – from licence drafting and rights enforcement to the impact of AI on existing business models. Please do not hesitate to contact us.
