On 3 September, the German Federal Court of Justice (BGH) concluded one of copyright law’s longest-running disputes by delivering its decision in Metall auf Metall VI. Applying the Court of Justice of the EU’s (CJEU’s) interpretation of the term ‘pastiche’ [see here and IPKat here] to the unauthorised sampling done by Moses Pelham, the BGH ruled that the two-second sample taken from ‘Metall auf Metall’ and used in ‘Nur mir’ could benefit from the pastiche exception under section 51a of the Act on Copyright and Related Rights (UrhG). This is the provision by which Germany transposed Article 5(3)(k) of the Information Society (InfoSoc) Directive.
Finally, the BGH examined whether applying the pastiche exception also satisfies the three-step test under Article 5(5) of the InfoSoc Directive. To begin with, the Court noted that the first step – i.e., exceptions being applicable only in certain special cases – was satisfied when the German legislature introduced an exception for pastiche under the UrhG. Regarding the requirement not to conflict with a normal exploitation of the work, the BGH held that reproducing the two-second sequence could not deprive Kraftwerk of the marketing opportunities for sampling licences, primarily because ‘Metall auf Metall’s popularity had become a ‘thing of the past’ by the time ‘Nur mir’ was released. Lastly, the Court concluded that Pelham’s use did not unreasonably prejudice Kraftwerk’s legitimate interests. Balancing the commercial use of ‘Nur mir’, the extent of borrowing, and the risk of confusion against Pelham’s fundamental right to freedom of artistic expression, the BGH ruled that any prejudice to Kraftwerk’s interests could not be deemed unreasonable.
Importantly, the recent judgment of the BGH only saved Pelham from liability for the period after which the pastiche exception came into force in Germany, rather than saving him from all the past infringements. In any case, beyond allowing Moses Pelham to reap the benefits of ‘Nur mir’, the value of this judgment lies in the possibility that many other ‘creators of tomorrow’ can now enjoy broader artistic freedom under this welcoming approach to imitative, repetitive uses of earlier works.
It is, however, worth noting three points standing out from the BGH’s reasoning. First, the Court classified the rhythmic sequence sampled from ‘Metall auf Metall’ as its ‘core motif’. This seems to echo the CJEU’s terminology: ‘characteristic elements’. Admittedly, a layperson can identify some iconic, core, characteristic bits and pieces of sound recordings, likely based on the importance or repetitiveness of the relevant part(s). However, from a copyright perspective, even after this judgment, ‘characteristic elements’ of a work – which, according to the CJEU, clearly differ from its mere protectable elements – remain an ambiguous phrase.
The BGH judgment offers considerable strengths that, especially if followed in other jurisdictions, can provide more ‘breathing space’ for artists who reuse existing works in the creation of new ones. Nevertheless, it – perhaps rightly so – leaves key questions open: how persuasive is it to treat a creation as if entering into a dialogue with an earlier work absent any intention to do so? What is the legal definition of ‘characteristic elements’ of a work? And what justifies differentiating a work’s characteristic elements from its protectable elements? While desirable outcomes can be reached without answering these questions, as can be seen from this case, in the long run, courts will eventually need to clarify these concepts to ensure consistency and legal certainty for the scope and application of the pastiche exception.
Acknowledgements: This Kat thanks Marcel Pemsel for his comments and contributions to this post!
Recap
Readers who would like a detailed recap of this nearly three-decade-long legal battle can find relevant Kat posts here. In a nutshell, the main proceedings between the music group ‘Kraftwerk’ and Moses Pelham began in 1999 following Pelham’s unauthorised sampling of a two-second rhythmic sequence from Kraftwerk’s song ‘Metall auf Metall’ and its continuous loop in his song ‘Nur mir’. Throughout its journey across various German courts attempting to decide whether the sampling could benefit from a copyright exception, there have been two references for a preliminary ruling to the CJEU.
With its first referral, the BGH essentially sought to understand whether the quotation exception could apply to the sampling at hand. Following the CJEU’s guidance, the BGH decided that Pelham’s unauthorised sampling did not amount to a quotation.
A couple of years later, after the introduction of the pastiche exception to German copyright law, the case was again appealed to the BGH, where Pelham this time claimed that pastiche exception allowed him to avoid liability for copyright infringement. Accordingly, the second referral to the CJEU by the BGH concerned the legal scope of that notion.
Starting with the requirement of evoking an earlier work while remaining noticeably different from it, the BGH emphasised that Pelham used the ‘core motif’ of ‘Metall auf Metall’, with changes ‘barely perceptible even to a musically … attentive listener’, allowing ‘Nur mir’ to evoke Kraftwerk’s work. At the same time, the later creation was found to maintain a ‘sufficiently great’ distance from the source it imitated and to ‘possess an independent character’ given the addition of new elements such as spoken vocals, electric guitar solos, and the later song’s own rhythmic patterns.
Evaluating whether an artistic or creative dialogue existed between the two sound recordings, the BGH held that using the two-second extract as an introduction to ‘Nur mir’ allows a listener familiar with ‘Metall auf Metall’ to ‘inevitably gain the impression of an artistic engagement with the distinctive composition of the borrowed rhythmic sequence’. This is essentially because the later work transports the listener to another musical genre, i.e., hip hop, by using a rhythm sequence derived from electronic music. In other words, recontextualising a rhythm sequence from one musical genre within another clearly establishes the artistic dialogue required for the pastiche exception.
As shown by the BGH’s reasoning, the allegedly infringing creation met all requirements set by the CJEU:
With its first referral, the BGH essentially sought to understand whether the quotation exception could apply to the sampling at hand. Following the CJEU’s guidance, the BGH decided that Pelham’s unauthorised sampling did not amount to a quotation.
A couple of years later, after the introduction of the pastiche exception to German copyright law, the case was again appealed to the BGH, where Pelham this time claimed that pastiche exception allowed him to avoid liability for copyright infringement. Accordingly, the second referral to the CJEU by the BGH concerned the legal scope of that notion.
Notion of pastiche
On 14 April 2026, the CJEU delivered its judgment, establishing the scope and requirements of pastiche. According to the Court, pastiche cannot be treated as a ‘catch-all’ clause capable of accommodating any kind of unauthorised reproduction of a copyright work. Conversely, the pastiche exception can only be relevant when a creation (i) ‘evoke[s] one or more existing works, while being noticeably different from them’, (ii) reproduces the ‘characteristic elements’ of those works which are protected by copyright, and (iii) ‘engage[s] with those works in an artistic or creative dialogue that is recognisable as such’. According to the Court, these dialogues can take various forms, including but not limited to overt stylistic imitations, tributes, and humorous or critical engagements with earlier works. Finally, the CJEU stated that the ‘pastiche nature’ of a creation must be ‘recognisable for a person who is familiar with the existing work from which the elements have been borrowed’.BGH’s decision
Applying the CJEU’s construction of pastiche and its established requirements, the BGH ruled that Pelham’s sampling qualified as a pastiche under section 51a UrhG.Starting with the requirement of evoking an earlier work while remaining noticeably different from it, the BGH emphasised that Pelham used the ‘core motif’ of ‘Metall auf Metall’, with changes ‘barely perceptible even to a musically … attentive listener’, allowing ‘Nur mir’ to evoke Kraftwerk’s work. At the same time, the later creation was found to maintain a ‘sufficiently great’ distance from the source it imitated and to ‘possess an independent character’ given the addition of new elements such as spoken vocals, electric guitar solos, and the later song’s own rhythmic patterns.
Evaluating whether an artistic or creative dialogue existed between the two sound recordings, the BGH held that using the two-second extract as an introduction to ‘Nur mir’ allows a listener familiar with ‘Metall auf Metall’ to ‘inevitably gain the impression of an artistic engagement with the distinctive composition of the borrowed rhythmic sequence’. This is essentially because the later work transports the listener to another musical genre, i.e., hip hop, by using a rhythm sequence derived from electronic music. In other words, recontextualising a rhythm sequence from one musical genre within another clearly establishes the artistic dialogue required for the pastiche exception.
As shown by the BGH’s reasoning, the allegedly infringing creation met all requirements set by the CJEU:
- (i) ‘Nur mir’ evokes ‘Metall auf Metall’ while having noticeable differences from it
- (ii) The reproduction of the source work’s ‘core motif’ qualifies as borrowing its ‘characteristic elements’.
- (iii) The interaction between the two works amounts to an artistic dialogue that is inevitably recognisable as such.
- (iv) The recurring references to a listener familiar with ‘Metall auf Metall’ clearly suggest compliance with the final requirement that the pastiche nature be recognisable to such a person.
Finally, the BGH examined whether applying the pastiche exception also satisfies the three-step test under Article 5(5) of the InfoSoc Directive. To begin with, the Court noted that the first step – i.e., exceptions being applicable only in certain special cases – was satisfied when the German legislature introduced an exception for pastiche under the UrhG. Regarding the requirement not to conflict with a normal exploitation of the work, the BGH held that reproducing the two-second sequence could not deprive Kraftwerk of the marketing opportunities for sampling licences, primarily because ‘Metall auf Metall’s popularity had become a ‘thing of the past’ by the time ‘Nur mir’ was released. Lastly, the Court concluded that Pelham’s use did not unreasonably prejudice Kraftwerk’s legitimate interests. Balancing the commercial use of ‘Nur mir’, the extent of borrowing, and the risk of confusion against Pelham’s fundamental right to freedom of artistic expression, the BGH ruled that any prejudice to Kraftwerk’s interests could not be deemed unreasonable.
Comment
This Kat has been waiting for some time for a judgment in favour of Pelham on the grounds of the pastiche exception, and is delighted with the BGH’s approach and findings, especially after the infringement finding of the Hamburg Higher Regional Court for the period between the InfoSoc Directive’s entry into force on 22 December 2002 – introducing, inter alia, the pastiche exception to EU copyright law – and the transposition of Article 5(3)(k) of the Directive into UrhG on 7 June 2021.Importantly, the recent judgment of the BGH only saved Pelham from liability for the period after which the pastiche exception came into force in Germany, rather than saving him from all the past infringements. In any case, beyond allowing Moses Pelham to reap the benefits of ‘Nur mir’, the value of this judgment lies in the possibility that many other ‘creators of tomorrow’ can now enjoy broader artistic freedom under this welcoming approach to imitative, repetitive uses of earlier works.
It is, however, worth noting three points standing out from the BGH’s reasoning. First, the Court classified the rhythmic sequence sampled from ‘Metall auf Metall’ as its ‘core motif’. This seems to echo the CJEU’s terminology: ‘characteristic elements’. Admittedly, a layperson can identify some iconic, core, characteristic bits and pieces of sound recordings, likely based on the importance or repetitiveness of the relevant part(s). However, from a copyright perspective, even after this judgment, ‘characteristic elements’ of a work – which, according to the CJEU, clearly differ from its mere protectable elements – remain an ambiguous phrase.
Second, the BGH discussed, to a certain extent, the relevance of the subjective intentions of unauthorised third parties when assessing the availability of a defence against infringement claims. It highlighted that whether the creators of ‘Nur mir’ had an intention to imitate the earlier work in order to pay homage or to create a tribute to it had not been established. Conversely, the Court noted that Pelham initially denied any sampling. However, in accordance with the CJEU’s approach, it reiterated that the intentions of users in copying earlier works are not relevant, let alone decisive. Therefore, in the case at hand, insofar as an objective assessment of the source work and the allegedly infringing work revealed an artistic or creative dialogue – by reproducing ‘characteristic elements’ – the alleged infringer was allowed to enjoy the protection afforded by the pastiche exception, without the further need to prove an intention or a consciousness to imitate or create an homage.
Finally, the BGH provided a somewhat detailed analysis of the three-step test, further supporting that Pelham’s unauthorised use can and should benefit from an exception. This was an appropriate and needed addition to the CJEU’s judgment, since the BGH demonstrated how the CJEU’s construction of pastiche, when applied to an individual case, also satisfies the test provided under Article 5(5) of the InfoSoc Directive.
 |
Acknowledgements: This Kat thanks Marcel Pemsel for his comments and contributions to this post!
Do you want to reuse the IPKat content? Please refer to our
Policies section.
If you have any queries or requests for permission, please get in touch with the IPKat team.
Comments
Post a Comment
All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.
It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.
Learn more here: http://ipkitten.blogspot.com/p/want-to-complain.html