We are very pleased to present this contribution by Victor J. Messerschmidt, Czech-German lawyer and holder of an LL.M. in Art Law from LUISS Guido Carli University in Rome. His work focuses on intellectual property, the art and design market, and the advisory structures surrounding them. He is the founder of Æsthesis Studio, an art and collectible design advisory network. In his article, he examines the CJEU’s Pelham II judgment, a landmark music-sampling case that, after more than two decades of litigation, clarifies the limits of the pastiche exception in European copyright law.
“One…”
“Two…”
That is roughly how long the sample at the heart of Pelham II lasts. Two seconds of music: barely perceptible to most listeners, yet capable of carrying rhythm, memory, style, and value. Enough, in this case, to keep European courts busy for more than two decades.
The dispute began in 1997, when Frankfurt-based music producer Moses Pelham took a rhythm sequence from Kraftwerk’s 1977 track Metall auf Metall, slowed it down, and looped it beneath Sabrina Setlur’s song Nur mir, without a licence and without asking. Kraftwerk sued. What might have looked like a minor act of sampling became one of Europe´s longest-running copyright disputes, moving through repeated proceedings before the Bundesgerichtshof (BGH), the Hanseatic Court of Appeal, the Federal Constitutional Court, and the Court of Justice of the European Union.
On 14 April 2026, the CJEU gave its latest answer in Case C-590/23, known as Pelham II. Responding to a preliminary reference from Germany’s Federal Court of Justice, it defined the concept of pastiche in European copyright law and set out how the exception is to be understood. The importance of the judgment lies first in the fact that pastiche is no longer left entirely to national law. It is grounded in Art. 5(3)(k) of the InfoSoc Directive (2001/29/EC), the EU provision on which the national exception rests. What Pelham II makes binding is the interpretation: “pastiche” is now an autonomous concept of EU law, so any Member State that has adopted the exception must read it uniformly. A dispute born in a German recording studio may therefore shape the future of transformative use across Europe and may also be looked at closely in non-EU jurisdictions such as Switzerland.
The ruling addresses a core legal question of interest: the balance of rights. The Court provides a detailed blueprint for how pastiche must be interpreted in the light of freedom of the arts (as guaranteed by Art. 13 of the EU Charter of Fundamental Rights), and freedom of expression (Art. 11 of the EU Charter) on the one hand, and the protection of intellectual property as property (Art. 17 of the Charter) on the other.
The Legal History
A brief overview of the legal framework might be helpful to contextualise the judgment. The InfoSoc Directive allows Member States to introduce exceptions to copyright for caricature, parody, and pastiche. In the following, the DSM Directive (2019/790/EU) sharply raised the stakes. Under Art. 17 DSM Directive, online platforms became directly liable for user uploads – but Art. 17 (7) DSM Directive obliges Member States to ensure that users can still rely on the exceptions for quotation, criticism, review and, crucially, caricature, parody and pastiche. Germany implemented it in 2021 through Article § 51a Urheberrechtsgesetz (UrhG); France has had a comparable exception for parody, pastiche, and caricature in Article L122-5, 4° Code de la propriété intellectuelle (CPI). Problematically, since neither directive defines “pastiche,” national approaches diverged, leading the BGH to ask the CJEU what constitutes a pastiche under European law and whether objective recognisability alone suffices.
The first CJEU judgment in this matter – « Pelham I » of 29 July 2019 (C-476/17) – already set a decisive direction by establishing a fundamental baseline for sampling. In essence, the Court held that the reproduction of even the shortest audio fragment constitutes an infringement of the phonogram producer’s exclusive rights, provided the sample remains recognizable to the ear. Conversely, the Court drew a sharp line regarding transformative use: no infringement occurs if a sequence is sampled and modified in such a way that it becomes completely unrecognizable within the new work. By clarifying that such unrecognizable fragments do not constitute copyright-protected copies, the CJEU explicitly sought to strike a fair balance between the protection of intellectual property and the freedom of the arts as guaranteed by the EU Charter of Fundamental Rights (EUGRCh).
Pelham II
In Pelham II, the Court provides a more structured definition by confirming that pastiche is not limited to humor or simple imitation of style, but it is also not a free pass to use protected material. The Court describes pastiche through a set of guiding features. A pastiche typically draws on an existing work in a way that is recognizable, but at the same time shows clear differences and adds something of its own. What matters is that the new work engages with the original in a way that can be understood as a form of artistic or creative dialogue. That reference must also be visible: the hidden borrowing or mere copying of a previous work does not qualify.
At the center of the Court’s approach is the idea of a recognizable artistic dialogue with the original work. This can take many forms – homage, stylistic imitation, humor, or critical commentary – and the list is not exhaustive. What matters is that the new work does more than simply borrow: it must engage with the original in a visible way and engage in a recognizable “artistic or creative dialogue” with the original (Para. 36).
Furthermore, the Court broadens the concept beyond traditional boundaries in so far as a pastiche is not restricted to humorous, satirical, or purely stylistic imitations. Instead, it can “take different forms and take place with various intentions”, such as “paying tribute to the work”, expressing “a form of humor or of criticism”, or “engaging in a pure stylistic exercise” (Para. 37). Because the everyday meaning of “pastiche” is not free from “ambiguity”, the Court held that the term must be interpreted by reference to the “context in which that term occurs” and the objectives pursued by Art. 5 (3) (k) of the InfoSoc Directive (Para. 38). As to that context, the Court observed that Art. 5 (3) (k) lists “pastiche” in the same provision as “caricature” and “parody”, as exceptions to the reproduction and communication-to-the-public rights under Arts. 2 and 3 of the same Directive. Their grouping in a single provision suggests that the EU legislature regarded them as sharing certain essential features: in particular, evoking an “existing work while being noticeably different from it” (Para 40; citing Deckmyn, C-201/13, Para. 20).
The benchmark: the artist´s inner intention or objective reasoning?
The Court also provides guidance on the perspective from which the pastiche exception must be assessed. The CJEU is making it clear that the artist’s inner intention does not decide whether the pastiche exception applies. What matters instead is objective recognizability, from the perspective of someone “familiar with that existing” source work “and who has the requisite intellectual understanding” (Para 59, 60). This makes it harder to rely on after-the-fact claims about artistic intent, but it also means that the “dialogue” has to be visible in the work itself. This approach is intended to “guarantee legal certainty” (Para 61).
In our view, the more a use competes commercially with the original, the harder it becomes to justify, though the Court did not say so expressly. It left the three-step test of Art. 5 (5) InfoSoc untouched, marking the boundaries of the exception only implicitly, by rejecting any catch-all reading. The pastiche exception protects artistic exchange – but not free-riding at the expense of the original creator. Seen in this light, Pelham II raises a broader question: when may artists use protected material without permission, and what does that mean for artists, galleries, institutions, and collectors?
Appropriation Art in the Light of Pelham II
The implications of these principles are particularly visible in the context of appropriation art. Famous works from Warhol’s Brillo Boxes to Richard Prince’s appropriation art operate in a way similar to sampling: existing, often protected material is recognizably taken, removed from its original context, and reframed, and so the act of transfer itself becomes the artistic gesture. The Tate Museum, for example, refers Appropriation in art and art history to the practice of artists using pre-existing objects or images in their art with little transformation of the original.
As described previously, until now, European copyright law has lacked a clear, binding framework for when such “appropriation” practices can be carried out without a license, and the CJEU’s judgement can help to provide a structure. On this basis, a work that simply takes and re-presents existing material, without adding any discernible new meaning or engagement, will generally fall outside the pastiche exception and require permission. By contrast, where the use visibly transforms the source material or places it in a new context that creates a recognizable dialogue with the original, the exception may apply.
Because the artist’s subjective intention is not decisive, this dialogue must be apparent from the work itself, at least to a viewer familiar with the source. For galleries and institutions, this means that the clarity of the artistic engagement is not only a curatorial matter but can also become a legal one. If a work’s conceptual dialogue is too obscure or lacks sufficient transformative friction, it may fail to meet the CJEU’s objective standard, with consequences for its exhibition, reproduction, cataloguing, or commercial circulation. In our reading, at the same time, the Court has opened a relatively predictable corridor for a broad range of transformative reuses, by decoupling the exception from rigid genre boundaries and replacing unpredictable subjective intent with an objective standard. Whether this amounts to a genuine “safe harbour” will depend on how national courts apply the dialogue requirement.
The term was hard to pin down because pastiche had never meant the same thing everywhere. As a recent cross-border study showed, its understanding is strongly shaped by its geographical, cultural and social “home”: France, Scandinavia and Eastern Europe leaning towards imitative and humoristic uses, while Italy, Spain and countries shaped by the British tradition give greater weight to homage and creativity. The Court therefore had to forge one autonomous EU concept from national traditions that had long diverged.
Consequently, Pelham II does not give artists a blank cheque. It gives them a test. A protected pastiche must be more than a recognizable borrowing: it must establish an objectively recognizable artistic or creative dialogue with the earlier work. This requirement draws the line between transformation and appropriation, between reference and mere taking.
Seen from Switzerland, the judgment is not binding. Swiss copyright law has its own framework, and Swiss courts are not required to follow the CJEU. Still, it would be unwise to ignore Pelham II. In a cross-border art market, where works, artists, galleries, platforms, and collectors often move between jurisdictions, the judgment offers a useful point of comparison for assessing transformative practices. It leaves artists and lawyers with a clearer, but not necessarily easier, question: when does an artwork speak with another work, and when does it simply take its voice?