Sampling Law in Germany and the EU: Pelham, Pastiche and What Producers Need to Know

In Germany and the rest of the EU, a recognizable sample of a recording generally needs the rights holders' consent, even if it lasts only a second or two. There is one important exception: since 2021, German law allows uses "for the purpose of pastiche," and in 2026 both the EU Court of Justice and Germany's Federal Court of Justice confirmed that some sampling can qualify. That exception is narrow and fact-specific, so clearance is still the safe default.

Two rights in every sample

A sample usually touches two separate rights:

• The sound recording (master). This belongs to the phonogram producer, often a label. Performers also hold neighboring rights in their performance.
• The composition. This belongs to the songwriters and their publishers.

A sample can infringe one, both or neither. A short drum loop may contain no protected melody but still copy the recording. A replayed melody copies the composition but not the master. Clearing a sample therefore often means two permissions from two different parties.

The Pelham ruling (CJEU, 2019)

The leading EU case started with Kraftwerk's 1977 track "Metall auf Metall." Producer Moses Pelham took a roughly two-second rhythm sequence and looped it in the 1997 song "Nur mir." Kraftwerk sued, and the case went through the German courts for decades.

In 2019 the Court of Justice of the European Union (CJEU) decided case C-476/17. The key points were:

• Reproducing even a very short sound sample is a reproduction "in part" of the phonogram. That needs the phonogram producer's consent.
• There is an exception. If a user takes a fragment and modifies it so it is unrecognizable to the ear in the new work, that is not a reproduction of the phonogram.
• EU member states cannot add their own copyright exceptions beyond those listed in the EU InfoSoc Directive.

The last point mattered for Germany. German law at the time had a "free use" rule in § 24 UrhG that courts had applied to sampling. After Pelham, that rule could not be used to let in uses the Directive did not allow.

Germany abolished "free use" in 2021

On June 7, 2021, Germany reformed its copyright act to implement the EU Digital Single Market rules. Two changes matter for producers:

• § 24 UrhG (free use) was repealed. Its idea moved into a revised § 23 UrhG. A new work that keeps a "sufficient distance" from the original is not treated as an adaptation. If it does not keep that distance, it needs consent.
• § 51a UrhG was added. It permits reproduction, distribution and public communication of a published work for the purpose of caricature, parody and pastiche.

Caricature and parody were fairly well understood. Pastiche was not. Nobody knew whether it covered sampling, remixes or memes.

Pelham II: the CJEU defines pastiche (April 2026)

Germany's Federal Court of Justice (BGH) asked the CJEU to define pastiche in case C-590/23. The CJEU ruled on April 14, 2026. According to law firm summaries of the judgment:

• Pastiche is an autonomous EU concept, so it should mean the same thing across the EU.
• A pastiche evokes one or more existing works while being noticeably different from them.
• It uses protected elements, including through sampling, to engage in a recognizable artistic or creative dialogue with the original. That dialogue can be a stylistic imitation, a tribute or homage, or a humorous or critical engagement.
• Humor is not required. Otherwise pastiche would just repeat parody.
• Pastiche is not a catch-all exception. Concealed copying and plagiarism are excluded.
• The user's subjective intent does not need to be proven. What counts is whether the pastiche character is recognizable to someone familiar with the original.

The BGH decision (September 2026)

On September 3, 2026, the BGH applied this test in case I ZR 74/22. It dismissed Kraftwerk's appeal and held that, on the facts found by the Hamburg Higher Regional Court, the two-second loop in "Nur mir" was a permitted pastiche under § 51a UrhG. That holding covers the period from June 7, 2021 onward.

For earlier periods, the Hamburg court had awarded Kraftwerk damages and information claims. According to German legal press reports, a constitutional complaint about that earlier period is pending at the Federal Constitutional Court. The case is therefore not fully closed.

The BGH did not set out a general rule for where pastiche begins and ends. Its finding rests on the facts of this case.

What is settled and what is not

Settled:

• A recognizable sample of a recording is a reproduction that needs consent unless an exception applies.
• A fragment modified until unrecognizable to the ear is not a reproduction of the phonogram.
• Sampling can, in principle, be a pastiche under EU and German law.
• Pastiche requires a recognizable dialogue with the original and noticeable differences from it.

Still open:

• How courts will treat samples that are recognizable but used mainly as a building block, with no obvious tribute or commentary.
• How other EU member states will apply the CJEU test in their own courts.
• Whether the exception's other limits, such as the EU "three-step test" for exceptions, will narrow it in commercial cases.

What this means for producers in Germany and the EU

• Do not treat pastiche as a sample license. It is a defense you raise after someone claims infringement. It does not stop a claim, a takedown or a platform block.
• Clearance is still the predictable route. A written license tells you what you can use, where and for how long.
• Clear both sides. The master and the composition are separate. A pastiche argument may work for one and not the other.
• Think about where you release. Distribution is global. A use permitted in Germany may still be challenged in the US or another country with different rules.
• Platforms do not apply pastiche. Automated systems like YouTube Content ID match audio. They do not assess whether a use is a lawful pastiche.
• Keep records. If you rely on an exception, document what you took, how you changed it and why your track engages with the original.

How the US differs

US law has no pastiche exception. Producers there rely on licenses, the de minimis doctrine or fair use, and the courts disagree:

• Bridgeport Music v. Dimension Films (6th Cir. 2005) held that any copying of a sound recording needs a license. The court summed it up as "get a license or do not sample."
• VMG Salsoul v. Ciccone (9th Cir. 2016) rejected Bridgeport and held that a de minimis defense applies to sound recordings too. A tiny, unrecognizable use may not infringe.
• Newton v. Diamond (9th Cir. 2004) applied de minimis to the composition side of a short sample.

So the answer can depend on which US circuit hears the case. Fair use is decided case by case and is hard to predict for commercial music.

Clearing samples in practice

If you want certainty, ask the rights holders before release. A sample license should name the source recording and composition, the new track, the territory, the term, the media and the fee or royalty share.

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