In depth
In a follow-up to our earlier article discussing the long-running Pelham litigation and its implications for music sampling and copyright in the EU, the case has taken a significant turn: on 20 June 2025, Advocate General (Emiliou delivered his Opinion in C-590/23 CG, YN v Pelham GmbH, reigniting the debate over how copyright law should interact with the realities of artistic re-use and addressing the interpretation of the yet-unexplored concept of pastiche. This Opinion is a critical development in the ongoing legal saga that began when a two-second sample from Kraftwerk's Metall auf Metall was used in a track by Sabrina Setlur without authorization. While the first round (Pelham I) focused on the earlier version of the InfoSoc Directive's closed list of exceptions and the inadequacy of the German "free use" provision, Pelham II shifts attention to whether the newer EU-wide exception for pastiche, introduced by Article 17(7) of Directive (EU) 2019/790 – which amends the Infosoc Directive-, can provide a lawful basis for such artistic re-use.
Now, the AG has issued this opinion on the matter:
- Limitations on artistic re-use under the InfoSoc Directive: The AG emphasized that the InfoSoc Directive provides an exhaustive and optional list of exceptions to the reproduction rights. Member States cannot provide, in their national law, for additional possibilities freely to use protected material. As regards the exceptions of 'caricature, parody or pastiche' set forth by Article 5(3)(k) of the InfoSoc Directive, the AG acknowledges that given that such provision does not indicate any requirements for the application of those exceptions, their scope depends on the meaning of the three concepts listed in that provision. The directive does not offer any definition in that regard, so it is therefore a task of the Court of Justice to fill that gap. The Court of Justice clarified the concept of 'parody', in the judgment in Deckmyn, where it ruled that 'the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humor or mockery'. By contrast, as stated above, the Court has never explored the concept of 'pastiche', which must be regarded as an autonomous concept of EU law.
- Definition of Pastiche: Rejecting the notion that pastiche can serve as a blanket exception for all artistic borrowings, the AG instead proposed a narrower, structured definition striking the balance between recognizing the importance of artistic dialogue with the past while maintaining clear boundaries to prevent unlicensed wholesale copying: "An artistic creation which evokes an existing work by adopting its distinctive aesthetic language, while being noticeably different from the original, and is intended to be recognized as an imitation. The purpose pursued with that overt stylistic imitation is irrelevant. The use of protected elements from works or other subject matters, including 'samples' of phonograms, falls under the corresponding exception where it results in an artistic creation presenting those essential characteristics."
The AG contends that 'pastiche' is characterized by the fact that it is intended to be recognized as an imitation, by contrast to plagiarism. Thus, whether the user had that intent is, indeed, decisive, and to avoid bad-faith users retrospectively present plagiarism as 'pastiche' in infringement proceedings, such intent should be assessed objectively and should thus be indicated therein or, at least, recognizable as such.
According to the AG proposed interpretation of pastiche, using third party's 'samples' and other borrowings of such material which do not serve such an artistic, overt stylistic imitation would not covered by that exception.
An example of a well-known work that could be classified as a pastiche according to the AG's definition is Quentin Tarantino's 'Kill Bill,' which evokes multiple existing works by adopting their distinctive aesthetic language while remaining noticeably different from the originals and is intended to be recognized as an imitation.
- The quotation exception: the AG argues that the 'quotation' exception provided for in Article 5(3)(d) of the InfoSoc Directive entails, according to the definition of 'quotation' adopted by the Court in the judgment in Pelham, that the third-party material must be reproduced (i) for the purpose of 'entering into dialogue' with the underlying work so 'quoted', which presupposes (ii) that the listener or viewer can 'identify' that work. To qualify as 'quotation', the use of pre-existing works must be a vehicle for intellectual interaction between the new creation and the source material. A quotation could be encountered in situations where creators refer, in an overt manner, to an existing work in their own creation, as a tribute to its author or its cultural importance, to evoke a shared cultural background, or to contrast their own ideas. Certain cases of 'sampling', including in hip hop, where recognizable 'samples' are intended to function as referential, digital 'quotations' of the underlying works, would also be covered by quotation. A clear example of quotation in pop music is "Empire State of Mind (Part II) Broken Down" by Alicia Keys, which takes the chorus of her feat with Jay-Z "Empire State of Mind" and turns it into the emotional chore of her own song – like a sequel or personal response to the original. Puff Diddy's song "I'll Be Missing You," which incorporates a sample from The Police's "Every Breath You Take", or Primal Scream's song "Loaded," which includes a fragment from the movie "The Wild Angels," could also fit into such exception.
By contrast, the AG argues that the 'mere appropriation of third-party material, because of its aesthetic properties, to be used as a building block is not enough', and that 'memes, gifs, and appropriating famous themes to build variations, or the use of 'samples' which are not meant to be recognized as a reference by the listener and/or are too short to allow any interaction with the underlying work (for instance, a single drum kick or a few seconds of an instrumental track, reused in a loop to become the rhythm section of a new creation') – the case at hand- would not fall under such exception.
- Compatibility with the freedom of the arts: AG Emiliou criticizes the InfoSoc Directive's harmony with the current framework of the freedom of the arts enshrined in Article 13 of the Charter. Though he acknowledges that these reflections stretch beyond the scope of the CJEU's judicial function, he proposes a legislative reform that introduces a new exception for artistic re-use that would allow courts to apply a more flexible, case-by-case assessment, which would be, in his view, more aligned with needs of various contemporary art movements, as well as with the functioning and trends of the internet.
The AG's Opinion, while not binding, sets the stage for the CJEU's forthcoming judgment, which will determine the future scope of pastiche as a legal exception across the EU. His interpretation firmly rejecting pastiche as a catch-all solution but embracing its use for stylistically self-aware imitation, provides a much-needed conceptual anchor. It is worth noting that the AG's Opinion does not reference certain requirements for pastiche that have been set by some national regulators, such as the Spanish, which mandate that for the newly created work to fall under such exception, it must avoid causing confusion with or harm to the original work or its author. Additionally, the Opinion does not consider the humorous intention as an element to be considered, a point that has also been debated at a national level in certain EU countries.
This debate extends beyond traditional copyright concerns. With the rise of generative AI tools that can mimic artistic styles or incorporate existing materials, the way EU law understands and applies pastiche will likely influence how these technologies are regulated in the cultural and creative industries.
For now, creators, rights holders, and legal practitioners must wait for the Court's final word. But one thing is clear: Pelham has become more than just a dispute over a two-second sound bite. It's a testing ground for how EU copyright law can evolve to meet the complexities of modern creativity.
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Berta Cabañas, Trainee, has contributed to this legal update.
