All you need is dialogue: the CJEU interprets ‘pastiche’ in Pelham II

On 14 April 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in Pelham II, bringing partial closure to litigation spanning more than two decades. The dispute originated in the unauthorised reproduction of a two-second sample from the 1977 track Metall auf Metall by Kraftwerk, subsequently looped in the 1997 hip-hop track Nur mir by Sabrina Setlur. For a closer look at AG Emiliou’s opinion, see here and here.

The ruling has been held as a victory for artistic reuse: commentators (e.g. here, here, here) emphasise that pastiche is now recognised as a legitimate and flexible exception to copyright, that sampling artists enjoy enhanced legal certainty, and that the balance between exclusive rights and creative freedom has shifted. Notwithstanding this initial reception, a more cautious reading suggests that the judgment simultaneously introduces constraints for successfully relying on this defence that may significantly qualify its practical effects.

At the outset, the Court was required to address two principal questions: first, whether the “pastiche” exception under Article 5(3)(k) of the InfoSoc Directive should be interpreted broadly so as to encompass artistic reuse practices such as sampling, without necessitating elements such as humour, stylistic imitation, or tribute; and secondly, whether classification as pastiche depends upon the subjective intention of the user, or whether it suffices that such a characterisation is objectively recognisable to an ’’ ‘recognisable for a person who is familiar with the existing work from which the elements have been borrowed’ (para 62).

The meaning of “pastiche” in EU copyright law

The Court rejected an expansive “catch-all” interpretation of pastiche. It clarified that the exception does not extend to all forms of artistic engagement with protected works (paras 32, 43–44). Instead, it applies to creations that evoke existing works while remaining perceptibly different, and which utilise characteristic elements of those works to engage in a recognisable artistic or creative dialogue.

In so doing, the Court affirmed that pastiche constitutes an autonomous concept of EU copyright law, to be interpreted in light of its ordinary meaning, context, and underlying objectives (para 34). And, while acknowledging that the ordinary meaning of “pastiche” is contested, the Court identified as a central feature “a creation in a style which imitates that of another work, artist, or artistic movement” (para 35).

Drawing on its earlier jurisprudence concerning parody (most notably C-201/13 Deckmyn v Vrijheidsfonds) the Court reiterated that both parody and pastiche must evoke an existing work while being noticeably different from it (para 40; Deckmyn, para 20). However, the Court went further in distinguishing pastiche as an independent category within Article 5(3)(k), thereby raising broader interpretative questions regarding the remaining category of caricature within EU law. However, a prior question arises as to the internal coherence of the Court’s interpretation:

Namely, whether the Court has inadvertently created a situation in which the parody exception is rendered substantively redundant. Since Pelham II explicitly recognises 'humorous or critical engagement' as a form of dialogue within pastiche, and since parody is characterised precisely by humorous engagement with an evoked work, every parody would necessarily satisfy the pastiche requirements. In short: if pastiche encompasses parody as a subset, what is the independent rationale for maintaining a separate parody exception?

Crucially, the Court introduced a limiting condition: in order to ensure a fair balance between the protection of intellectual property and the fundamental right to freedom of expression, the pastiche exception applies only to overt forms of imitation and excludes concealed reproductions (para 49). It follows that the exception is confined to situations in which a new work evokes one or more existing works, while remaining distinguishable from them, and does so in order to engage in a form of artistic or creative dialogue that is recognisable as such (para 50).

The return of the “dialogue requirement”

This “dialogue requirement” is not without precedent. In Pelham I, the Court introduced a comparable condition in relation to the quotation exception (art. 5.3.d InfoSoc Directive 2001/29/EC), requiring that the use serve the purpose of entering into a dialogue with the quoted work, such as illustrating an assertion, defending an opinion, or enabling intellectual comparison (paras 70–72).

However, as noted in academic commentary, including by Elena Izyumenko, the formulation in Pelham II differs in a significant respect. Under the pastiche exception, dialogue does not depend upon a demonstrable communicative intention on the part of the user. Rather, it is sufficient that the elements incorporated into the new work are characteristic of the source material (para 51), and that the resulting engagement may take diverse forms, including stylistic imitation, homage, or critical or humorous interaction (para 53).

Implications for sampling

The Court expressly recognised sampling as an artistic techniquefalling within the scope of the right to freedom of expression (para 55). While the reproduction of phonograms remains within the exclusive rights of rightholders, this does not preclude reliance on the pastiche exception where its conditions are satisfied.

The irrelevance of subjective intention

A notable doctrinal development lies in the Court’s treatment of user intention. Unlike the quotation exception, which requires a specific communicative purpose, the pastiche exception does not hinge upon the subjective intent of the user. Instead, the Court held that it is sufficient that the pastiche character of the work be recognisable to a person familiar with the original work and possessing the requisite level of understanding.

As observed by Eleonora Rosati, this approach reflects the Court’s increasing reliance on a notional, informed observer, a form of “fictional legal persona” that mediates the assessment of copyright limitations in contemporary jurisprudence.

So, what does this mean in practice?

The judgment in Pelham II clarifies that sampling is capable, in principle, of falling within the scope of the pastiche exception. It does not, however, establish that sampling is presumptively to be regarded as pastiche, nor does it suggest that the requisite “dialogue” will be readily demonstrable in practice. Accordingly, the decision does not fundamentally alter prevailing licensing practices. The introduction of the dialogue requirement (remaining both conceptually open-ended and fact-sensitive) preserves a degree of legal uncertainty that is likely to necessitate further judicial clarification.

Much will depend on how national courts operationalise this criterion: whether they adopt a broad or restrictive interpretation of “dialogue”, whether industry actors adapt their business models as a result, and whether reliance on the exception increases incrementally as a body of case law emerges.

For most sampling artists, therefore, Pelham II modifies the negotiating environment rather than displacing the underlying need for licensing. In certain cases, a sampling artist negotiating with the rightholders of the original work may secure more favourable licensing terms where a credible pastiche argument strengthens their bargaining position. In others, where a work manifestly embodies recognisable dialogue, the artist might reduce litigation risk by releasing without prior clearance, knowing that a court would likely recognise the pastiche defence.

Nevertheless, for commercially distributed works, the structural realities of the music industry remain largely unchanged. Sampling artists must satisfy the distributor's requirements regarding content ownership and clearance (which typically include representations that necessary rights are in place)From another perspective, this may be viewed as positively for lesser-known music makers whose works are subject to sampling, insofar as a narrower or uncertain scope of the pastiche exception preserves their ability to secure remuneration where their material is incorporated into subsequently successful commercial releases.

In this sense, Pelham II constitutes a doctrinal affirmation of artistic freedom. Its translation into meaningful practical freedom within the music industry, however, remains contingent and, at present, limited.