IP Law Daily, COPYRIGHT NEWS—European Court of Justice: A ‘pastiche’ is a not a catch-all for any sort of music sampling, (Apr 20, 2026)

By Matthew Hersh, J.D.

The European fair use exception covers only samples that engage “in an artistic or creative dialogue that is recognisable as such.”

An artist who replicates underlying works may take advantage of the European fair use concept of “pastiche” only if they made the samples “in order to engage with those works in an artistic or creative dialogue that is recognisable as such,” the Court of Justice for the European Union has held. But the court, in refusing to give the term the broad “catch-all” meaning that fair use that the backers had sought, also emphasized that it was not necessary for the artist to have the express purpose of making a pastiche in order for the legal doctrine to apply.

The opinion arises out of a lengthy dispute between two prominent German musical acts. Kraftwerk, a German band formed in Düsseldorf in 1970 by Ralf Hütter and Florian Schneider, is widely considered to be a pioneer in the field of electronic music. Sabrina Setlur is a German rapper who came to prominence in the 1990s and remains one of the best-known and highest-selling female rap acts in the court’s history.

The two musical pioneers came head-to-head after Setlur released in 1997 (and, again, in 2004), a song entitled ‘Nur mir.’ The two Kraftwerk founders brought proceedings before the German courts against Setlur and her co-author (and their musical producers as well) for copyright infringement. They contended in particular that Setlur sampled without permission approximately two seconds of a rhythm sequence from their track Metall auf Metall and used that sample in a continuous loop in the song ‘Nur mir’. Setlur and her co-collaborators argued, in response, that her use of the sample was covered as a “pastiche” under fair use law.

The lawsuit went through a dizzying round of back-and-forth between various German tribunals. A Hamburg regional court sided with Kraftwerk, and an intermediate panel known as the higher regional court dismissed Setlur’s appeal. The appeal then bounced from there to the Federal Court of Justice, then back down to the higher regional court, then back up to the Federal Court of Justice, then up to the Federal Constitutional Court—Germany’s top court—before going back down to the Federal Court of Justice, then down once again to the higher regional court, and then finally landing, for now a fourth time, to the Federal Court of Justice.

That court referred two questions of European fair use law to the Court of Justice for the European Union, leading to this opinion.

Fair use under European Union Law. The two legal questions that the German court referred to the European Court related to the definition of the term “pastiche.” European fair use law, as codified in Article 5(3)(k) of Directive 2001/29/EC of the European Parliament, provides a fair use exception for works made for the purpose of “caricature, parody or pastiche.” But what is “pastiche” in this context? The first question the German court asked the European court to resolve was whether pastiche should be considered a “catch-all” term for any kind of sampling or, in the alternative, whether it was “subject to restrictive criteria such as a requirement of humour, stylistic imitation or tribute.” The second question was whether the use of a sample as pastiche “presupposes an intention on the part of the user to use that protected work or subject matter for that purpose.” The court found the answer to both questions to be “no.”

A “pastiche” could not be a catch-all for any form of sampling, the court found, because that would have the effect of “rendering redundant” the exceptions for “caricature” and “parody” in the same phrase. That said, pastiche also could not be coterminous with those two words, the court emphasized, as that would introduce the same redundancy. Taking a step back, the court noted, while the term was “rarely used in everyday language,” it was “commonly used to designate a creation in a style which imitates that of another work, artist or works belonging to the same artistic movement.” That could include humorous or satirical imitations, to be sure, but it could also include “paying tribute” to the underlying work, of expressing a form of humour or of criticism of the work, or of “engaging in a pure stylistic exercise” concerning the work.

Putting all those together, the court settled on the following definition of the term pastiche: “creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them.”

As to the second question, the court found, it was not necessary that the user of a sample wishing to rely on the “pastiche” provision expressly intended to use an existing work for that purpose. As the court’s Advocate General explained, the court noted, the question of whether a works constitutes a pastiche must be assessed objectively, with the result that the ‘pastiche’ nature must be recognisable for persons familiar with the existing work from which those elements have been borrowed.” It followed from that opinion, the court found, in order for use to be “for the purpose” of pastiche, within the meaning of European law, “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.”

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