A sample of things to come? German courts rule use of unlicensed Kraftwerk sample is lawful

The highest German civil court has delivered its judgment on a long-running copyright dispute which could have wide implications for sample use and licensing in the EU. The court has ruled that a two second sample can benefit from the defence of pastiche, which may open the door for more widespread uncleared sample use throughout the EU.

Background

The case concerns the use of an unlicensed two second sample of Kraftwerk’s 1977 track ‘Metall auf Metall’, which was lifted by Moses Pelham and used for the beat in Sabria Setlur’s ‘Nur mir’ in 1997. The dispute has been ongoing for nearly three decades, making its way through various German courts.

Mr Pelham argued that his use of the sample benefited from the defence of pastiche, allowing him to avoid liability for copyright infringement.

What is pastiche?

As discussed in further detail here, pastiche refers to the imitation of the style or nature of a genre, creator, or character, or creating a new work by compiling pre-existing works.

Pastiche is generally limited to copying the style of a work or creating an amalgamation of works, and does not extend to copying the subject matter or wholesale reproduction of the original work.

Decision

The German Court considered that pastiche cannot be considered a ‘catch-all’ defence permitting any kind of unauthorised use of a copyright work, following the CJEU’s recent clarification in Case C-590/23 (Pelham II) in April 2026. Pastiche can only apply in circumstances in which a work:

• ‘evoke[s] one or more existing works, while being noticeably different from them’;
• reproduces the ‘characteristic elements’ of those works which are protected by copyright; and
• ‘engage[s] with those works in an artistic or creative dialogue that is recognisable as such’.

The German Court said that the use can take various forms, including (but not limited to) stylistic imitations, tributes, and humorous or critical engagements with earlier works.

Applying this to the case, the Court ruled that Mr Pelham’s sample evoked Kraftwerk’s work, using the ‘core motif’ with changes ‘barely perceptible even to a musically … attentive listener’. Despite evoking the original work, Mr Pelham’s work was said 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, a different genre (hip-hop) and the later song’s own rhythmic patterns. This ensured it ‘inevitably gain[ed] the impression of an artistic engagement with the distinctive composition of the borrowed rhythmic sequence’. Therefore, the sample fell within the definition of pastiche as introduced into German law in June 2021, and Mr Pelham was able to successfully defend the copyright infringement claim.

Comment

This decision is potentially hugely significant for the music industry, as it establishes that sampling without clearance may be lawful if the new work evokes an existing work and reproduces its characteristic elements whilst being noticeably different from it, and it engages with the existing work in an artistic or creative way that is recognisable as such. This judgment is likely to result in greater creative freedom for producers and musicians alike, and reduce the hurdles for getting a musical work containing samples released.

That said, there are still some outstanding questions, such as what constitutes ‘characteristic elements’ of a work, and what the threshold is for creative engagement with the prior work. This judgment does not automatically create a free pass for artists to sample as they wish without fear of infringement, far from it. Each case will be judged on its own facts. However, it is a significant development and it provides artists with more freedom than they had previously when it comes to sampling, at least in the EU. It will be interesting to see whether the UK courts take heed of the judgment and follow suit.

If you’re involved in a copyright dispute and would like assistance, get in touch with our legal team at info@briffa.com or through our website form. Our IP experts are here to help.