CJEU makes pastiche ruling in long-running Kraftwerk sampling case

German synth pioneers Kraftwerk have been in a decades-long dispute with producer Moses Pelham over whether using a sample in music constitutes pastiche under copyright exemptions, which would free the producer from requiring permission.

Now the CJEU has delivered a definition of pastiche which opens the door to musical artists and samplers to use material without prior permission if it represents a recognisable reference to the original.

The dispute, which has been running for almost thirty years, came about after Pelham used a two-second sample of Kraftwerk’s 1977 track Metall auf Metall, modified it slightly and looped it as part of the bassline for the 1997 Sabrina Setlur song Nur Mir.

Two members of Kraftwerk, Ralf Hutter and Florien Schneider, brought a suit for copyright infringement, which they initially won but was overturned on appeal. The case continued until 2016, when a court ruled in favour of Pelham and Setlur, before the CJEU overturned that ruling in 2019.

This ruling meant samples would be classed as copyright infringement if taken without permission, unless the sample itself is unrecognisable. The CJEU sent the case back to the German courts, which ruled the sample could be recognised – but by this time, a change in copyright law meant the ruling could only apply between 2002 and 2021 when the law changed.

This change included the introduction of pastiche as a defence against copyright infringement, and the German federal court sent the case back to the CJEU for clarity on what is defined as pastiche.

The CJEU ruled that the term is defined by creations which evoke one or more existing works while remaining notably different, and that should engage with the original works as “an artistic or creative dialogue”.

It clarified that this dialogue can be defined in broad terms – from critical or satirical through to a tribute – provide it is recognisable as such. As the sample on Nur Mir is modified and used in a different genre of music from Kraftwerk’s original, the court noted, it is recognisably alluding to the original track.

Announcing its decision, the court said: “In order for a finding to be made that use is ‘for the purpose’ of pastiche, it is sufficient that the ‘pastiche’ nature be recognisable for a person who is familiar with the existing work from which the elements have been borrowed.

“A finding that the user intended to use the work for that purpose is therefore not necessary. The Court notes that that interpretation of the exception for ‘pastiche’ ensures a fair balance between the protection of the freedom of the arts and copyright protection, as well as legal certainty.”

The matter will now return to the federal courts for them to rule on the post-2021 usage issue.

Nils Rauer, an intellectual property expert with Pinsent Masons in Frankfurt, said the ruling by the CJEU would enable both the judiciary and legal professions to provide clearer advice around a contentious matter.

“I truly appreciate that the CJEU takes the position that all three criteria – pastiche, parody and caricature – have their own scope and meaning,” he said.

“It is true that there is no clear definition of ‘pastiche’ and views differ from country to country and language to language. Still, in a place such as Europe we do need to define EU law in a common manner.

“The definition tabled by the advocate general and picked up by the judges can work and can deliver fair results when balancing the underlying fundamental rights. The national judges as well as we lawyers can operate on this basis and can render advice to our clients.

“Of course, views will continue to differ and disputes may arise again. Still, the criteria developed here do contribute to a higher level of legal security and predictability of rulings.”