Kraftwerk revisited – CJEU ruling in Pelham II clarifies test for the pastiche exception

Background

The CJEU’s judgment is the latest development in the long-running Pelham litigation (often referred to as the Kraftwerk case). It addresses whether the unauthorised sampling of another work infringes EU copyright law.

Pelham GmbH produced the track Nur mir, which was released in 1997 by German rapper, Sabrina Setlur. Ralf Hütter and the late Florian Schneider-Esleben, founder members of the well-known band Kraftwerk, alleged that Pelham had sampled two seconds of a rhythm sequence from their 1977 track, Metall auf Metall, and looped it throughout Setlur’s recording. The band members successfully brought proceedings before the German courts, claiming that Pelham had infringed their exclusive reproduction rights in the sound recording.

The case then passed repeatedly through the German courts and the CJEU. In 2019, the CJEU held that sampling without permission infringes the exclusive right of a phonogram producer to authorise or prohibit the reproduction of their phonogram, within the meaning of Article 2(c) of the Copyright Directive, ^[3] even if very short, so long as the sample is recognisable to the ear. The CJEU also determined that, for the purposes of the producers’ distribution right under Article 9(1)(b) of the Rental and Lending Rights Directive, ^[4] a recording containing a sample from another recording is not a “copy” of that track, as it does not amount to a complete or substantial reproduction of the original work.

Following the CJEU’s decision, the case was reconsidered by the Higher Regional Court in Hamburg, ^[5] which in 2022 varied an earlier lower-court judgment against Pelham and applied a three-stage assessment:

1. ‍before 22 December 2002 – no infringement of copyright under German copyright law (UrhG), as it then stood; ^[6]‍
2. from 23 December 2002 until 7 June 2021 (i.e. from the expiry of the period for transposition of the Copyright Directive until the entry into force of new limitations of copyright) – infringement of copyright; and‍
3. from 7 June 2021 onwards – no infringement of copyright under the new Paragraph 51a of the UrhG, which allows the unauthorised reproduction of works for the purpose of “caricature, parody or pastiche” in accordance with Article 5(3)(k) of the Copyright Directive.

On an appeal on a point of law against the third limb of that assessment, the Federal Court of Justice ^[7] took the view that the reproduction of the rhythm sequence at issue did not meet the requirements for classification as “caricature” or “parody”, as nothing suggested that the song Nur mir was an expression of humour or mockery. Yet it referred two questions to the CJEU for a preliminary ruling on whether sampling can amount to a “pastiche” under EU copyright law, which can be summarised as:

1. Does the pastiche exception have a catch-all nature that covers any form of artistic engagement with an existing work (e.g. in the form of sampling) under Article 5(3)(k) of the Directive, or is the concept of pastiche subject to limiting criteria, such as a requirement of humour, stylistic imitation or tribute?
2. Does use of a copyright work “for the purpose of” pastiche within Article 5(3)(k) require an intention on the part of the user to use the work for that purpose, or is it sufficient for the pastiche character to be recognisable by a person familiar with the work who has the intellectual understanding required to perceive the pastiche?

Decision

Is the pastiche exception a catch-all exception?

The CJEU held that the pastiche exception under Article 5(3)(k) of the Directive does not have a catch-all nature covering every form of creative use of copyright material. Rather, since the Directive does not define “pastiche” and makes no reference to national law as to its meaning, “pastiche” must be regarded as an autonomous concept of EU law whose interpretation must be determined uniformly throughout of the EU, by considering the usual meaning of the term in everyday language and taking into account the context in which it occurs and the objectives pursued by the exception.

The court noted that, even though the term is commonly used to designate a stylistic imitation of another work, artist or artistic movement, it encompasses diverse meanings, such as paying tribute or humorous, satirical or critical engagement. As such, its interpretation should be based on the context in which it occurs and the objectives of the exception.  

• ‍Context – It is relevant that the term appears alongside “caricature” and “parody”, implying that they share certain common essential characteristics, especially that of evoking an existing work while being noticeably different from it.  Yet “pastiche” is still a distinct concept, and need not necessarily constitute an expression of humour or mockery.‍
• Objective – The exception was clearly intended to ensure a fair balance between the interests of rights-holders and those of users, and specifically freedom of expression and artistic freedom and public interest. As such, the concept of “pastiche” cannot cover concealed imitations or plagiarism, but must involve overt uses that are recognisable as such. It should also cover creations that evoke characteristic elements of existing work(s), while being noticeably different from them, to engage with them in a form of artistic or creative dialogue that is recognisable as such. That dialogue may take different forms, such as (but not limited to) stylistic imitation, tribute or humorous or critical engagement.

As to sampling, the court considered that sampling constitutes a form of artistic expression that is covered by freedom of the arts, to be balanced against the phonogram producer’s right to authorise or prohibit reproduction that remains recognisable to the ear. Accordingly, sampling could, in principle, fall within the scope of the pastiche exception, as long as the sample is used for the purpose of creating a new work that satisfies the criteria for “pastiche”.

Does the purpose of “pastiche” require intention on the part of the creator?

On the second question, the court noted that, to guarantee legal certainty, the purpose of “pastiche” must be assessed objectively. Accordingly, it is sufficient that the “pastiche” nature is recognisable by a person who is familiar with the existing work from which protected characteristic elements have been borrowed.  

As such, it is implicit from the judgment (although not spelled out by the court) that it is not necessary to establish a subjective intention on the part of the creator of the pastiche.

Comment

The judgment relates to EU law, but it is also persuasive for related aspects of UK copyright law that are derived from EU law, and the English courts seem likely to take this ruling into account in dealing with future cases turning on pastiche.  

It takes a middle-ground approach to the pastiche exception. The court rejected both a broad, catch-all reading and an unduly narrow interpretation. Instead, it set out a structured, but flexible approach: the later creation must evoke the original work(s), be noticeably different from them, and use protected elements as part of a recognisable artistic or creative dialogue. The court’s definition of “pastiche” also confirms that the concept is independent from “caricature” and “parody”. The ruling therefore gives artists and producers some scope for arguing that certain forms of sampling may be lawful, but it does not create a general licence to borrow protected material without permission.

As such, its effect is likely to be felt across the music industry and other creative sectors that depend on types of transformative re-use. The court’s clarification provides a clearer framework within which artists and producers might seek to rely on the pastiche exception when sampling, interpolating or otherwise borrowing from existing works – as long as the pastiche criteria are duly satisfied. Rights-holders will derive some comfort that the exception does not provide carte blanche for sampling without a true purpose of pastiche – nor indeed a general panacea for AI output that is unjustifiably close to pre-existing work(s).

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Article written for Entertainment Law Review.