From a 2-second sample … to a 30-year battle over the legality of sampling

Marie-Avril Roux Steinkühler
Jul 16
4 min read

A look back: a relentless battle

It all began with a German legal dispute between the members of the band Kraftwerk, in their capacity as producers of sound recordings, and the composers of the track ‘Nur mir’ as well as its producer, Moses Pelham, who were accused of having used, without authorisation, a two-second sound sample from the track ‘Metall auf Metall’.

After more than 20 years of fierce legal proceedings before the German courts, which were generally unfavourable to the producer Pelham, the case led to a first major ruling in 2019 (Case C‑476/17, known as Pelham), in which the Court of Justice of the European Union held that:

the recognisable use, however brief, of a sound sample falls, in principle, within the exclusive right of the phonogram producer;
such use is exempt from this exclusive right only if the extract is rendered unrecognisable to the ear or if it is covered by an exception provided for under EU law.

Following the annulment of the judgment and its referral back to the Hamburg Court of Appeal by the German Federal Court of Justice, the defendants put forward a new argument to circumvent the lack of authorisation: the pastiche exception.

The German courts had to re-examine the case in the light of harmonised European law. This is because the introduction of the pastiche exception, through the European DSM Directive (2019/790), in Article 51a of the German Copyright Act, led to a reform of national law through the abolition of the central mechanism of ‘free use’ under the former Article 24, which allowed an artist to create a second work based on a first work without the author’s authorisation.

Thus, the Hamburg Court of Appeal initially recognised the pastiche by drawing a temporal distinction in its analysis of the dispute, holding that:

for the period prior to European harmonisation, the use of the sound sample constituted an infringement of their right of reproduction, since the sequence taken from the track was clearly perceptible and recognisable to a listener familiar with the pre-existing track;
as regards the period from the entry into force of Section 51a, any infringement of copyright and related rights had to be ruled out, on the understanding that the disputed use constituted a use for the purposes of ‘pastiche’ authorised under that provision.

Following a back-and-forth between the Hamburg Court of Appeal and the Federal Court of Justice, the latter upheld the first part of the analysis but referred the second part for a further preliminary ruling, leading to the Pelham II judgment.

14 April 2026 – Case C-590/23, Pelham II

The CJEU clarifies the conditions under which the use of pre-existing works, in particular through sampling, stylistic adaptation or creative transformation, may fall within the ‘pastiche’ exception, which allows for exemption from the need to obtain authorisation from the holders of copyright or related rights in the pre-existing work.

🎵 A pastiche, yes… but not under just any conditions

The CJEU explicitly confirms that sampling may, in principle, fall within the pastiche exception.

In this regard, it specifies that a pastiche requires four essential conditions:

an overt and recognisable use of the source work;
the use of characteristic and protected elements of that work;
the creation of a new work that is distinctly different from the original;
the existence of an identifiable artistic or creative dialogue with the earlier work.

⚖️ An objective test

One of the major contributions of the judgment lies in the choice of assessment criterion: the CJEU adopts an objective test. In other words, it is not the subjective intention of the author or the user that matters, but the fact that an observer familiar with the original work can objectively perceive the creative dialogue between the two works.

⚠️ Final filter: the three-step test

Despite the Court’s silence on the matter: even where content may be classified as a pastiche, it must still satisfy the well-known ‘three-step test’, thereby ensuring that the pastiche exception does not become a ‘catch-all’ category.

In other words, the use:

must be authorised by an exception under the country’s law;
must not prejudice the normal exploitation of the work;
nor cause unjustified prejudice to the legitimate interests of the rights holder.

We shall see what surprises the next German court to rule on the matter has in store for us.

🤖 And what about AI in all this?

The definition of pastiche adopted by the CJEU is broad enough to potentially cover certain AI-generated content, particularly where systems reuse:

stylistic codes;
identifiable cultural references;
recognisable fragments;
or creative transformation processes.

Provided that there is no infringement of the normal exploitation of the work, nor any unjustified prejudice to the legitimate interests of the rights holder.

The choice of an objective criterion is decisive here.

AI obviously has no intention of its own. However, according to the approach adopted by the CJEU, it is up to the person invoking pastiche to prove that their intervention was decisive.

🔍 Unresolved questions

For generative AI, the issues then become particularly complex:

at what point does a stylistic reference become a substitute?
how can we distinguish between creative transformation and disguised reproduction?
how should we assess models trained on vast quantities of protected works?
what role does human intervention via prompts actually play?

It is therefore hard not to see an echo of the song’s very own lyrics:

‘You don’t understand a thing about my world, and yet you try to force your way in

you bring me nothing but problems, and you want to be a part of me?’

✉ Contact

If you offer digital content, AI tools or platforms in France or Germany, MARS — IP can help you ensure the legal compliance of your activities and manage the risks associated with copyright and creative content.