Pelham II

Key takeaways

The case began with a two-second sample taken from a Kraftwerk track. After a first ruling in 2019 on sampling, the Court of Justice, sitting as a Grand Chamber, was asked whether such a borrowing could be covered by the pastiche exception.

Its answer reshapes the exception. Pastiche becomes an autonomous concept of EU law, distinct from parody: humour is not required. Three conditions must be met: evoking an existing work while showing perceptible differences, borrowing its characteristic elements in an apparent way, and engaging in an artistic or creative dialogue with it. For video games, the ruling opens a possible avenue for fan creations and reworked cosplay, but its application outside music remains to be built.

The dispute has lasted more than twenty years. In its first ruling, in 2019, the Court held that taking a sound sample, even a very short one, is a reproduction requiring authorisation, unless the extract is modified to the point of being unrecognisable to the ear. Germany then wrote pastiche into its law in 2021, and the Federal Court of Justice asked Luxembourg to define its contours.

In France, the exception appears in Article L. 122-5, 4° of the Intellectual Property Code, alongside parody and caricature. It was little used there, for want of a clear definition. The ruling could give it a second life, provided that national courts spell out what a “creative dialogue” is outside music.