No hidden tracks: CJEU rules that pastiche must be recognisable

For the best part of three decades, a case concerning a two-second drum loop has reverberated through the most senior courts of Germany and Europe. In its second judgment in this case (CG and YN v Pelham GmbH and Others (Case C-590/23)), the Court of Justice of the European Union (“CJEU”) has delivered what may be its final word on the matter, ruling on the scope of the “pastiche” exception in EU copyright law. 

Background

The dispute centres on a two-second sample from the 1977 song Metall auf Metall by the German synth band Kraftwerk. In 1997, two composers and producer Moses Pelham took the short sample and looped it as a baseline for the song Nur mir. The claimants, two members of the band, contended that this sampling infringed their phonographic rights and copyright in the relevant musical work.

What followed was a litigation odyssey spanning the Hamburg courts, the Bundesgerichtshof, the German Federal Constitutional Court, and, on two separate occasions, the CJEU. 

In its earlier 2019 ruling (Pelham and Others, C-476/17), the CJEU held that a phonogram producer may prevent another from using even a very short sample, unless it is included “in a modified form unrecognisable to the ear”. Applying that ruling, the German courts concluded that the sample was recognisable in Nur mir and was hence infringing.

However, that decision did not address the pastiche exception, which Germany had not yet transposed into law. Germany subsequently implemented it through Paragraph 51a of the Urheberrechtsgesetz (UrhG), which entered into force on 7 June 2021. 

Such new law, derived from Article 5(3)(k) of Directive 2001/29, created an exception to the exclusive rights of copyright owners where the otherwise infringing acts were done “for the purpose of caricature, parody or pastiche".

The Hamburg Higher Regional Court subsequently held that the sampling constituted a permissible pastiche for the period after 7 June 2021 but, following an appeal by the claimants, the case headed back to the CJEU after the Bundesgerichtshof referred two questions on the pastiche defence. 

The Two Questions

The Bundesgerichtshof posed two questions. 

First, is pastiche a “catch-all” exception covering any form of artistic engagement with a pre-existing work, or is it subject to limiting criteria? 

Second, does use “for the purpose of” pastiche require subjective intention, or is it sufficient that the pastiche character be objectively recognisable?

The CJEU decision

The CJEU held that pastiche is an autonomous concept of EU law and should be interpreted uniformly throughout the EU, despite the fact that in its common language meaning it can have a variety of different definitions.

The Court went on to reject the proposition that pastiche is a catch-all, but equally declined to impose restrictive requirements such as humour or mockery, which would render pastiche redundant alongside parody and caricature. 

Instead, the Court held that pastiche covers “creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works' characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such”. That dialogue may include stylistic imitation, tribute, or humorous or critical engagement. 

Notably, pastiche cannot encompass “concealed imitations” or plagiarism. It presupposes overt, recognisable use of “characteristic” elements of the source work. 

Objective Recognition, Not Subjective Intention

On the second question, the Court ruled that no subjective intention is required, ruling “In order for a finding to be made that use is ‘for the purpose’ of pastiche, it is sufficient that the ‘pastiche’ nature be recognisable for a person who is familiar with the existing work from which the elements have been borrowed. A finding that the user intended to use the work for that purpose is therefore not necessary”.

Conclusions

This ruling brings some welcome additional clarification on the meaning of pastiche. Some key points emerge for practical application in the future.

First, the judgment makes clear that sampling is not automatically sheltered. The new work must engage in a recognisable artistic or creative dialogue with the original. The creative relationship between the works matters, not simply whether the sample is audible. 

Second, whilst related, the exception is different to parody or caricature. It does not require humour or mockery, but rather embraces tribute, stylistic imitation, and critical engagement. 

Third, the test is objective. The test is whether a person familiar with the original would recognise the new work as “engaging in dialogue” with it, not whether the creator consciously intended a pastiche.

It remains to be seen how the German court will apply the CJEU’s guidance in the present case. In any event, it looks likely that the extended edition of this long-running dispute may finally be nearing its final performance.