In a judgment handed down on Tuesday, 14 April (Case C-590/23), the Court of Justice of the European Union (CJEU) has clarified the extent to which the use of ‘pastiche’—in this case, the reproduction of a musical sample (sampling)—of a copyright-protected work without the authorisation of the copyright holders is allowed so as to ensure a fair balance between protecting the freedom of the arts and protecting copyright as well as legal certainty.
In Germany, the founders of the group Kraftwerk have accused the composers of “Nur mir” of infringing their copyright-related right by copying a two-second sample of a rhythm sequence from the song “Metall auf Metall” and integrating it into their song.
In July 2023, the CJEU had already ruled that sampling without authorisation does not infringe the rights of the phonogram producer if the sample is not recognisable to the ear (Case C-476/17) (see EUROPE 12306/16).
This time, the European court has been considering whether the sampling in question is lawful in Germany since a law that, in accordance with Directive 2001/29, authorises the reproduction, distribution, and communication to the public of a published copyright-protected work for the purposes of caricature, parody, or pastiche entered into force in June 2021.
According to the Court [of Justice], the exception under EU copyright rules can be applied where a ‘pastiche’ engages with the copyright-protected work in an artistic or creative dialogue that is recognisable as such. Concealed imitations of protected subject matter and even plagiarism are therefore not covered by the concept of ‘pastiche’.
According to the CJEU, artistic dialogue can take different forms: an overt stylistic imitation of a work, a tribute, or a humorous or critical engagement with that same work.
The Court [of Justice] explains that, in order to find that use of a work has been made for the purpose of pastiche, it is sufficient for the pastiche to be recognisable by those familiar with the work from which elements have been borrowed.
While it falls to the German Federal Court to decide the dispute, the CJEU notes that the previous court had found that the song “Nur Mir” artistically engages with the rhythm sequence taken from the song “Metall auf Metall”—in a different musical genre—while being recognisable as alluding to the original despite the reduction in tempo and the shift in rhythm.
See the judgment of the Court of Justice: https://aeur.eu/f/ljo (Original version in French by Mathieu Bion)