ECJ Clarifies the Concept of Pastiche: What This Means for Transactions Involving Music Assets
On 14 April 2026, the Court of Justice of the European Union (ECJ) delivered its judgment in Pelham v Kraftwerk (C-590/23) and, for the first time, provided a detailed interpretation of the concept of “pastiche” in the context of European copyright law.
In this article, Inna Semenova, an expert at REVERA Polska, examines the practical significance of this judgment for the music industry, investors and participants in M&A transactions.
Background to the case
In 1997, the production company Pelham GmbH used a two-second excerpt from the rhythm section of Kraftwerk’s composition Metall auf Metall (1977) in the song Nur mir. The band’s founders brought legal proceedings.
The dispute has continued for almost 30 years and has already become one of the leading European cases in the field of sampling.
In its first judgment in 2019 (C-476/17), the Court indicated that the use of a sample without the rightholder’s consent may, in principle, infringe the rights of the phonogram producer, unless the excerpt has been altered to the point of being unrecognisable.
After the exception for pastiche came into force in Germany in 2021 (implementing Article 5(3)(k) of Directive 2001/29/EC), a new question arose:
| “Can sampling fall within this exception, and what exactly constitutes a pastiche?” |
The ECJ’s position
| The Court formulated the following approach: |
A pastiche is a work which:
|
Such a dialogue may take various forms:
- stylistic imitation;
- homage;
- a humorous statement; or
- critical commentary on the original.
An important conclusion of the Court
The ECJ applied an objective criterion: there is no need to prove the author’s subjective intention. It is sufficient that the “pastiche” character of the work be apparent to a person familiar with the original.
At the same time, the Court specifically emphasised that the pastiche exception is not a universal defence for any form of borrowing.
Concealed imitations and plagiarism do not fall within it.
Practical implications for business and M&A
1. Reassessment of IP risks relating to music catalogues
Catalogues containing uncleared samples have traditionally been valued at a discount. This is particularly true of hip-hop and electronic music from the 1990s and 2000s, where the use of samples was common practice.
The ECJ’s judgment creates a new category of analysis: some such uses may potentially be regarded as lawful on the basis of the pastiche exception. This does not remove the risk automatically, but it may alter the approach to assessing that risk and allocating it between the parties to a transaction.
What should be done:
- review the approach to the valuation of catalogues containing historical samples;
- identify disputed tracks as a separate risk category; and
- take into account the impact of the pastiche defence when structuring the transaction.
2. Updating IP due diligence
A standard chain-of-title review may be insufficient. It is necessary to conduct due diligence and assess how persuasive the defence is, what the genre and artistic context are, and whether there is any case law on analogous situations.
Practical conclusion: purchasers of music assets and investors should consider including pastiche analysis as a separate element of IP due diligence.
3. Reconsidering representations and warranties
The standard SPA wording that all copyright-protected assets are used on a lawful basis may, in certain transactions, require refinement.
In particular, additional carve-outs may be possible in relation to:
- a list of tracks in respect of which the seller relies on a pastiche defence; and
- the allocation of risks if that defence is not upheld by the court.
4. Geographic allocation of risks
The exception for pastiche applies within the EU; however, Member States have implemented it differently.
- In the United States, the doctrine of fair use applies, while in the United Kingdom, following Brexit, a separate regulatory regime is in force.
- This means that an asset which is permissible from the perspective of EU law may create separate risks in the United States or the United Kingdom.
In cross-border transactions — for example, the acquisition of a European label by a US fund — a separate geographic breakdown in the IP assessment will be required.
5. Potential significance for AI companies
The judgment does not directly concern companies that train models on music content or create generative music products.
However, the argument concerning a “creative dialogue with existing works” is already being used in the legal positions advanced by certain market participants. For this reason, in the due diligence of AI assets in the EU, this factor may also require separate assessment.
What comes next?
The German Federal Court of Justice must now apply the ECJ’s approach to the facts of the Kraftwerk case. That judgment may become the first practical benchmark for the whole of Europe.
One key question remains open: who exactly is to be regarded as “a person familiar with the original work” for the purposes of the objective test?
Until a settled body of case law emerges, that criterion will likely remain a source of disputes.
REVERA Polska’s conclusion
The ECJ’s judgment may affect the valuation of music catalogs, the structure of contractual warranties, and approaches to IP due diligence.
For businesses, this means a need to reassess existing transaction practices and adopt a more careful allocation of risks in deals involving music catalogs and digital assets.
Author: Inna Semenova
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