Sampling as pastiche - German national court applies CJEU ruling in Kraftwerk dispute

Background

In 1977, the well-known German band Kraftwerk released the electronic track Metall auf Metall. Twenty years later, Pelham GmbH produced the hip-hop track Nur mir, performed by singer Sabrina Setlur and released in 1997. The members of Kraftwerk alleged that the producers, Moses Pelham and Martin Haas, had sampled a two-second rhythm sequence from Metall auf Metall without permission and looped it continuously throughout the 1997 track, thereby infringing various rights that Kraftwerk held in the original sound recording.

What followed was a lengthy series of proceedings before the German courts and the CJEU, prolonged by various appeals and changes to the relevant copyright regime. In 2022, the Higher Regional Court in Hamburg ^[4] divided the case into three periods to reflect developments in copyright law:

1. Before 22 December 2002 (i.e. before the deadline for implementing Directive 2001/29/EC) - there was no infringement of copyright under § 24 of the German Copyright Act (UrhG), ^[5] as it stood at that time.
2. From 22 December 2002 until 7 June 2021 (i.e. the transitional period between the deadline for implementation of the Copyright Directive and the entry into force of new limitations of copyright) - there was an infringement of copyright.
3. From 7 June 2021 onwards (i.e. since the entry into force of the new limitations of copyright) - there was no infringement of copyright, as the sampling of Metall auf Metall constituted a "pastiche" under § 51a of the UrhG. ^[6]

Kraftwerk, disagreeing with the Higher Regional Court’s decision to dismiss the claims from 7 June 2021 onwards by reason of the pastiche exception, appealed that part of the ruling to the BGH. To determine whether the Higher Regional Court was correct in its decision, the BGH referred two questions to the CJEU on the meaning of "pastiche" under Article 5(3)(k) of the Copyright Directive in light of the new provision at § 51a of the UrhG.

On 14 April 2026, the CJEU ruled that:

• the exception for "pastiche" is not a catch-all provision, but rather covers creations that: (i) evoke one or more existing works while being noticeably different from them; and (ii) use characteristic copyright-protected elements of those works (e.g. through sampling) to engage with them in a recognisable artistic or creative dialogue (such as a stylistic imitation, tribute, or humorous or critical engagement); and
• whether a work is used "for the purpose of pastiche" must be assessed objectively, and it is sufficient that its pastiche character is recognisable to a person familiar with the existing work from which the copyright-protected elements have been taken.

Decision

The BGH applied the CJEU’s ruling on pastiche under Article 5(3)(k) to determine whether the two-second sample of Metall auf Metall in Nur mir amounted to copyright infringement and, ultimately, whether the claims from 7 June 2021 should continue, or whether § 51a of the UrhG applied.

Prima facie infringement of Kraftwerk’s rights

The BGH agreed with the Higher Regional Court that the sampling of the rhythm sequence from Metall auf Metall constituted a prima facie infringement of Kraftwerk’s rights. The court found that the two-second sequence used was a copyright-protected musical work. Accordingly, by sampling that sequence, the appellate court was correct in recognising a prima facie infringement of Kraftwerk’s reproduction rights as phonogram producers and performing artists, as well as their reproduction and distribution rights as authors, since the rhythm sequence was used in a form that is recognisable by ear.

The BGH clarified that the use of the rhythm sequence did not meet the requirements of the quotation exception under § 51 of the UrhG or the incidental-copying exception under § 57 of the UrhG.

Pastiche

The BGH acknowledged that the rhythm sequence was copyright-protected, and that its reproduction engaged Kraftwerk’s rights. As Nur mir did not use the sampled sequence to express humour or mockery, the use did not qualify as caricature or parody. The key question, then, was whether the sampling instead constituted a use for the purpose of pastiche under § 51a of the UrhG.

The BGH held that, on the facts, the sampling constituted a use for the purpose of pastiche that was permissible under § 51a. Applying the CJEU’s criteria for a pastiche, the BGH noted that the first seven bars of Nur mir consisted of a continuous foreground repetition of the sequence taken from Metall auf Metall, thus recognisably evoking the "germ line" of the 1977 track (and not just the “tiniest audio particles” from the source track). The court noted that the tempo of the sample had been slowed down by 5%, and that there was a metric shift, with Nur mir starting on beat 1 rather than on beat 3 of bar 19 of Metall auf Metall, but that those changes to the original were hardly perceptible, even to a musically trained ear, and so the source work remained recognisable.

That said, the BGH considered that, despite the adoption of the rhythmic figure in the introduction and its continuation throughout the rest of the track, Nur mir maintained "its own distinctive character", through the layering of additional elements (such as its own melody, rhythm patterns and vocal elements), and Nur mir was "clearly recognisable as a piece belonging to the hip hop genre", meaning that the track remained sufficiently distinct from Kraftwerk’s original.

The BGH concluded that there was an artistic engagement with Kraftwerk’s track and echoed the Higher Regional Court’s earlier decision that the sequence amounted to "a stylistic imitation in the form of an homage" to Metall auf Metall – even though there was no need to establish an intention on the part of the producers aimed at imitation or homage, as the assessment should (per the CJEU) be objectively based on whether the chosen type of artistic engagement is recognisable to someone familiar with the original work and who possesses the intellectual understanding required to perceive a pastiche. Further, the extracted sequence, despite the reduced tempo and metric shift, was objectively perceptible and recognisable to a musically attentive and open listener (even when continuing "to work artfully in the background") and so constituted a clear reference to the original work, even though Nur mir as a whole had an independent character, with the additional gradually added sonic elements leading the listener into another musical genre.

Three-step test

The BGH went on to consider the three-step test for establishing a fair balance of rights and interests under Article 5(5) of the Directive, holding that it did not prevent the application of the pastiche exception in this case.

The three-step test ensures that an exception under Article 5 only applies (a) in certain special cases that (b) do not conflict with the normal exploitation of the protected work or other subject matter and (c) do not unreasonably prejudice the legitimate interests of the rights-holder. The court ruled that the first limb of the test was met because the pastiche exception under Article 5(3)(k) constituted a legally regulated special case. Turning to the second limb, the BGH held that Kraftwerk were not deprived of the possibility of satisfactorily exploiting their rights as a result of the sample in Nur mir, because there was no competitive relationship with the original recordings, given the 20-year gap between releases. Finally, the potential commercial nature of Nur mir was insufficient to constitute undue prejudice in light of the artistic engagement with Metall auf Metall. So, applying the pastiche exception on the facts was compatible with the three-step test.

Appeal dismissed

Accordingly, the BGH dismissed Kraftwerk’s appeal and upheld the Higher Regional Court’s decision to dismiss the claims relating to the period from 7 June 2021 onwards. Kraftwerk’s successful claims are therefore confined to the period from 22 December 2002 to 7 June 2021, during which Pelham’s use of the sample was found to infringe Kraftwerk’s rights and the pastiche exception was not yet available.

Comment

The ruling is important in a UK context, as the UK pastiche exception derives from the same Directive, and so, while a UK court would not be bound by the ruling of a German court, it could find the decision persuasive or at least instructive.

The actual finding of the court in this particular case is, in many ways, surprising. In a musicological sense, sampling a sequence from an earlier recording is not a "pastiche" as that term is usually understood among music producers: in that sense, a "pastiche" usually involves the creation of a new work in the style of earlier work(s), rather than direct, literal copying, as happens in the case of a sample. And the producers of Nur mir were, in music production terms, "looping" a well-known drum break by a well-known band, giving it strong prominence at the start of the track, and continuing to use it throughout the whole track (rather than letting it drop out, as the producers could easily have chosen to do instead) - suggestive perhaps of straight sampling for pure musical effect in its own right, rather than a high-minded artistic dialogue of the sort that the German court discerned.

As such, the ruling is counter-intuitive on the face of it. But it makes more sense in the context of the CJEU’s potentially very wide, open-ended interpretation of the "purpose of pastiche", which allows for other types of creative dialogue, such as a playful homage, and the German court’s careful analysis of its reasoning for its conclusion is understandable within the broad parameters of the CJEU's openly acknowledged desire to protect artistic freedom of expression. So, this important application of the CJEU's ruling could (if followed in other contexts) potentially provide producers, composers and artists with scope for engaging creatively with existing works by sampling without permission, provided that (a) such use meets the CJEU criteria for a pastiche and (b) amounts to fair dealing.

But those are very important provisos: the German court went to notable lengths to analyse the quite particular, granular reasons why the Nur mir track satisfied the CJEU’s test (including why it did not fall at the hurdle of the three-step test). By contrast, routine use of drum breaks or other musical sequences will not automatically qualify as pastiches - especially without any form of artistic dialogue with the source material (as is so often the case), and particularly where the new track is competing commercially (and unjustifiably so) with the original track.

Article written for Entertainment Law Review.