Pastiche – ECJ on Scope and Limits

ECJ Judgment of April 14, 2026 – Case C-590/23

With the judgment of April 14, 2026 (Case C-590/23), the European Court of Justice (ECJ) clarified the scope of the copyright exception “Pastiche.” The focus is on how creative expressions such as sampling, remix, or mashup can be reconciled with the rights of authors and phonogram producers. Following the ECJ’s decision, it is now up to the national court – here the Federal Court of Justice (BGH) – to apply the standards to the specific dispute.

Starting point: Works and recordings are fundamentally protected by copyright or related rights. Uses generally require permission from the rights holders – unless a statutory exception applies. Such an exception can be the “Pastiche.” Legally relevant is particularly how far an appropriation can go without unlawfully infringing the rights of the owners.

Background Case: Short Rhythm Sequence Sampled

The procedure was based on the use of a short excerpt from an existing sound recording. Specifically, about two seconds of a rhythm sequence were technically reproduced (“sampled”) and integrated in a modified form into a new piece of music. The rights holders of the original recording saw this as a violation of their related rights and claimed, among other things, injunction and damages.

The opposing party argued that the use either did not interfere with the scope of protection or was justified by a copyright exception. The BGH referred questions to the ECJ regarding the interpretation of Union law – particularly whether even the smallest appropriated sound components can constitute a relevant reproduction and when the use qualifies as “Pastiche” within the meaning of Directive 2001/29/EC (InfoSoc Directive).

Protection Also for Short Excerpts – Recognizability is Decisive

The ECJ clarified: Even very short excerpts from sound recordings can fundamentally be covered by the protection of the phonogram producer if they are recognizably incorporated in the new use. The primary factor is thus not the duration of the sample, but the identifiability of the part taken from the original recording.

At the same time, the ECJ emphasized that Union law permits exceptions that allow use without the rights holder’s consent. The term “Pastiche” must be interpreted uniformly across the Union and should not be narrowed or arbitrarily expanded based solely on national traditions.

Pastiche: Artistic Reference, Not Necessarily Humor or Criticism

According to the ECJ’s guidelines, a Pastiche is an artistic expression that can be characterized by imitation, reference, or stylistic allusion to existing works or styles. Unlike parody or caricature, there is no need for a humorous or critical engagement to be at the forefront. A Pastiche can also be designed as a homage, stylistic collage, or creative transformation.

Essential guidelines that can be derived from the decision:

• Recognizable Reference to an existing work or style,
• Independent Creative Performance (the new work must be more than just a mere copy),
• New Context into which the appropriated element is embedded.

The ECJ also emphasizes that the term “Pastiche” must be understood broadly enough to not exclude contemporary artistic practices – such as sampling, remix, and mashups – from the outset.

Limits: No Unjustifiable Impairment of Exploitation

The Pastiche exception is not limitless according to the ECJ’s guidelines. The necessary balance between the rights of the rights holders and the freedom of art remains crucial. The legal framework, in particular, states that exceptions may only apply when

• the normal exploitation of the protected work or sound recording is not impaired and
• the legitimate interests of the rights holders not unreasonably infringed are met.

This necessitates an individual case assessment: The more a sample functionally substitutes for the original demand or significantly impairs economic exploitation possibilities, the more likely the limits of the exception are reached. Conversely, a creative, transformative integration into a new artistic context may speak more in favor of the applicability of the exception.

Consequences for Music, Media, and Content Production

The ruling has practical significance for everyone working with pre-existing material—from music production to audiovisual formats and social media content. It strengthens the guidelines for permissible creative referencing, emphasizing that the assessment must not be purely formal (extraction yes/no), but must include the artistic context, degree of transformation, and market impact.

At the same time, an element of uncertainty remains: Whether a work in a specific case is classified as a pastiche depends on the circumstances of the individual case. National courts will need to carefully examine whether the conditions are met and whether the required balancing favors the exception.

Advice for Rights Holders and Creatives

• Creatives should document the artistic idea behind the adoption (transformation, new context, reference) and the extent to which the new work is independently shaped.
• Rights holders can continue to act against unauthorized uses—what matters, however, is a nuanced consideration of whether there is indeed an exception-covered artistic reference or an economically relevant appropriation without sufficient transformation.
• Licensing remains the least risky path in many cases, especially with prominent samples or when commercial use relies heavily on recognizability.

Conclusion

The CJEU opens a practical scope for the pastiche as an exception, taking into account modern forms of artistic production. However, it draws clear boundaries where normal exploitation is impaired or the legitimate interests of rights holders are unreasonably infringed. The precise articulation will now primarily be shaped by the application in individual cases by national courts, particularly the German Federal Court of Justice (BGH).

Note: This article is for general information and does not replace advice in individual cases.

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