The EU Court’s Nifty Legal Kraftwerk in Finally Defining “Pastiche”

James P. Flynn, Managing Director and Member of the Firm in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled "The EU Court's Nifty Legal Kraftwerk in Finally Defining 'Pastiche.'"

Following is an excerpt:

In the beginning (defined as 1977), there was a two-second rhythm loop. Kraftwerk, the Düsseldorf electronic music pioneers whose synthesizer-driven soundscapes helped define an era, laid down a percussion riff in their track "Metall auf Metall" that would prove as durable as the metal referenced in the track title (Listen to the drum sequence that begins roughly at the 0:03 – 0:05 mark of the 1977 album version). Twenty years later, hip-hop producer Moses Pelham lifted that two-second loop, modified it ever so slightly, and played it as a continuous backbone beneath Sabrina Setlur's 1997 rap track "Nur mir". And with that, one of the longest-running copyright disputes in the history of intellectual property law was launched, a sort of legal "Metall auf Metall" loop of its own that has been repeating, with variations, ever since.

On April 14, 2026, after a journey through the German courts that would have exhausted the patience of a Stoic philosopher, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its long-awaited ruling in CG and YN v. Pelham GmbH and Others, Case C-590/23 (Pelham II). This is the second time this same fact pattern, featuring the same two-second sample, had arrived at the CJEU's Luxembourg doorstep. The first visit, in Pelham I (Case C-476/17, decided July 29, 2019), had established that sampling requires permission unless the sample is acoustically unrecognizable. Now, in Pelham II, the Court was asked to define "pastiche," one of the most enigmatic concepts in all of (European) copyright law.

The answer the Court gave is that pastiche requires a recognizable "artistic or creative dialogue" with the borrowed work, but need not be humorous, satirical, or even expressly intended as such. That standard is worth pausing over. Not only does it matter enormously to the music industry, to digital creators, to remix culture, and to every EU Member State that has recently been required to implement the pastiche exception, but it also invites a transatlantic comparison with how American copyright law handles the closely-related question of what kinds of homage, tribute, and creative borrowing deserve protection. And on that comparison, as this author wrote here in 2017 when musing about the Paramount Pictures Corp. v. Axanar Productions, Inc. litigation, the two systems reach strikingly different destinations, even if they start from a roughly similar point.