The ECJ has made important clarifications on the relationship between sampling and pastiche (ECJ, judgment of April 14, 2026, Ref.: C-590/23). This is an important decision in practice: it concerns not only music productions, but also the creative adoption of protected elements in a new work in general. The focus is on the question of when the use of copyright-protected elements of a work may exceptionally be permitted without the consent of the rights holder.

What was it about?

The starting point is the long-running dispute over a two-second rhythm sample from the Kraftwerk track “Metall auf Metall”, which is said to have been used. According to the court, the legal dispute has been going on for more than 20 years. In particular, it was recently unclear how the exception for caricature, parody and pastiche that applies in Germany should be applied to such a case. The Federal Court of Justice therefore referred questions to the ECJ regarding the interpretation of the term “pastiche”.

What does the ECJ mean by “pastiche”?

The core statement of the decision is very relevant in practice for sampling and pastiche: The ECJ understands a pastiche to be a design that invokes one or more existing works, but is noticeably different from them and uses protected characteristic elements precisely to enter into a recognizable artistic or creative dialogue with the source work. According to the Court of Justice, this dialog can take different forms, such as an open stylistic imitation, an homage or a humorous or critical confrontation.

It is also important to note what the ECJ does not require: a pastiche does not necessarily require humor or mockery. This distinguishes the term from parody. For the copyright assessment of sampling and pastiche, this means that not every creative takeover is automatically permitted, but the scope of the exception is broader than purely satirical or comical use.

The decisive factor is the recognizable creative reference

The Court of Justice does not focus solely on the fact that a protected element is adopted. Rather, the decisive factor is whether the new use remains recognizable as an independent creative examination of the older work. This is the real touchstone for sampling and pastiche. Anyone who merely adopts third-party material in order to exploit it sonically or commercially will generally not be able to invoke the exception. On the other hand, anyone who works recognizably with the original work, makes reference to it and creates something independently new from it is more likely to be in the realm of a possible pastiche.

Equally important is the ECJ’s statement that the internal intention of the user is not decisive for the classification. It is sufficient if the pastiche character is recognizable to a person who is familiar with the adopted work. On the one hand, this creates more objectivity, but on the other hand it also increases the risk of litigation: in the end, the decisive factor is how the actual use is perceived.

What does this mean in practice?

For creatives, labels, producers, platform players and rights holders, the decision on sampling and pastiche provides some clear work assignments:

Firstly, the mere reference to “artistic freedom” is not sufficient. The use must be comprehensible as part of a recognizable artistic or creative dialogue with the earlier work. Secondly, there must be a noticeable difference to the original work. The closer the adaptation remains to the original, the more difficult it will be to invoke pastiche. Thirdly, the documentation of the creative concept is likely to become even more important in the future, for example in the production process, for releases or in the context of a subsequent legal defense.

Conversely, for rights holders, the ruling does not mean that sampling is now generally permitted. The ECJ expressly emphasizes the necessary fair balance between copyright protection and artistic freedom. It is precisely this balance that the pastiche exception is intended to ensure. Whether it applies in individual cases, however, remains a question of specific design.

We discussed how far the protection of creative works extends and where the limits of free use lie in our podcast episode Conni and the right to memes – where we explain what Section 51a UrhG allows and where the boundary to copyright infringement lies.

Our classification

For copyright law, the decision is more than just another building block in the long-standing Kraftwerk complex. For the first time, it provides tangible criteria on how to distinguish between sampling and pastiche in practice. This provides orientation, but not a blanket all-clear. Precisely because the ECJ focuses on the recognizable creative dialogue, the distinctiveness and the overall impression, the legal assessment remains highly dependent on the individual case.

Anyone working with samples, remixes, mash-ups or other forms of referential use should take the ruling as an opportunity to rethink and document their own creative concept. And anyone who is confronted with unauthorized use as a rights holder should check whether the invocation of pastiche can be considered at all in the specific case – or whether it is just a pretext.