Opinion of the Advocate General — ECLI:EU:C:2025:452
Date: 2025-06-17
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-590/23 – 1 
Case C-590/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 September 2023 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
14 September 2023 
Applicant and appellant in the appeal on a point of law: 
CG 
YN 
Defendant and respondent in the appeal on a point of law: 
Pelham GmbH 
SD 
UP 
  
Subject matter of the case in the main proceedings 
Infringement of copyright and related rights resulting from using extracts from 
another person’s phonograms by means of ‘sampling’ 
Subject matter and legal basis of the reference 
Request for a preliminary ruling under Article 267 TFEU concerning the 
interpretation of Article 5(3)(k) of Directive 2001/29/EC of the European 
Parliament and of the Council of 22 May 2001 on the harmonisation of certain 
aspects of copyright and related rights in the information society 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-590/23 
 
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Questions referred 
1. Is the provision limiting use for the purpose of pastiche within the meaning 
of Article 5(3)(k) of Directive 2001/29/EC a catch-all clause at least for artistic 
engagement with a pre-existing work or other object of reference, including 
sampling? Is the concept of pastiche subject to limiting criteria, such as the 
requirement of humour, stylistic imitation or tribute? 
2. Does use ‘for the purpose of’ pastiche within the meaning of Article 5(3)(k) 
of Directive 2001/29/EC require the determination of an intention on the part of 
the user to use copyright subject matter for the purpose of a pastiche, or is it 
sufficient for the pastiche character to be recognisable for a person familiar with 
the copyright subject matter who has the intellectual understanding required to 
perceive the pastiche? 
Provisions of European Union law 
Article 5(3)(k) of Directive 2001/29  
National legislation cited 
Paragraph 51a of the Gesetz über Urheberrecht und verwandte Schutzrechte (Law 
on copyright and related rights, ‘the UrhG’) 
Brief summary of the facts and procedure 
1 In 1977, the group ‘Kraftwerk’, the members of which included the first applicant 
and the predecessor in law to the second applicant, published a phonogram 
featuring the song ‘Metall auf Metall‘.The second and third defendants composed 
the song ‘Nur mir’, which the first defendant recorded on phonograms released in 
1997. 
2 The applicants contend that the defendants electronically copied (‘sampled’) 
approximately two seconds of a rhythm sequence from the song ‘Metall auf 
Metall’ and used that sample in a continuous loop in the song ‘Nur mir’ although 
it would have been possible for them to play the adopted rhythm sequence 
themselves. The applicants claim that as the phonogram producers, the defendants 
thus infringed their copyright-related right. The applicants brought an action 
against the defendants, inter alia seeking a prohibitory injunction, the provision of 
information and the surrender of the phonograms for the purposes of their 
destruction. 
3 The Landgericht (Regional Court) upheld the action and the defendant’s appeal 
was dismissed. Following an appeal on a point of law (Revision) brought by the 
defendant, the case was referred back to the appellate court for re-examination. 
After the appeal was dismissed a second time and the appeal on a point of law was 
PELHAM 
 
3 
unsuccessful, the Bundesverfassungsgericht (Federal Constitutional Court, 
Germany) overturned the judgments in the appeal on a point of law and the second 
appeal and referred the case back to the referring court. In the context of the third 
appeal proceedings on a point of law, the latter referred questions to the Court of 
Justice for a preliminary ruling, to which the Court replied (judgment of 29 July 
2019, C-476/17). By the third judgment on appeal on a point of law, the Senate 
hearing the defendants’ appeal on a point of law overturned the appeal court’s 
decision and referred the case back to the appeal court for a further hearing and 
decision. 
4 The appeal court changed the judgment of the Regional Court to the effect that the 
defendants were requested to provide information on the number of phonograms 
produced and/or delivered between 22 December 2002 and 7 June 2021 with 
sound recordings of the title ‘Nur mir’ as well as to surrender copies of those 
phonograms for the purposes of their destruction to the extent that their liability to 
pay damages was established; in all other respects, it dismissed the action. By 
their appeal on a point of law brought before the referring court, the applicants 
maintain their claims with effect from 7 June 2021. The defendants contend that 
the appeal on a point of law should be dismissed. 
Brief summary of the basis for the reference 
5 The success of the appeal on a point of law depends on the interpretation of 
Article 5(3)(k) of Directive 2001/29. 
6 The appeal court denied any infringement of the law for the period after the entry 
into force of Paragraph 51a of the UrhG on 7 June 2021. It held that the claim for 
a prohibitory injunction was unfounded and that the claims for information, for 
surrender for the purposes of destruction and for determination of damages did not 
exist (any longer) from 7 June 2021, because the inclusion of the rhythm sequence 
from the title ‘Metall auf Metall’ by means of sampling was a pastiche within the 
meaning of the first sentence of Paragraph 51a of the UrhG in the version in force 
from that date. 
7 The appeal on a point of law must be upheld if the appeal court erred in holding 
that the inclusion of the rhythm sequence from the title ‘Metall auf Metall’ by 
means of sampling is use for the purpose of pastiche permitted in accordance with 
the first sentence of Paragraph 51a of the UrhG in the version in force from 7 June 
2021, with the result that there is no infringement of the copyright-related rights 
invoked by the applicants as producers of phonograms or performers or of the first 
applicant’s copyright. 
8 According to the referring court, the appeal court did not err in law in finding that 
the applicants’ rights as producers of phonograms and performers were infringed 
and that the rhythm sequence reproduced is a musical work capable of being 
protected by copyright. 
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9 Under the first sentence of Paragraph 51a of the UrhG, it is permitted to 
reproduce, distribute and communicate to the public a published work for the 
purpose of caricature, parody and pastiche. This provision is applicable mutatis 
mutandis to the copyright-related rights of the performer and of the phonogram 
producer. 
10 Paragraph 51a of the UrhG transposes Article 5(3)(k) and (4) of Directive 2001/29 
and must therefore be interpreted in conformity with the directive. 
11 Given that the disputed reproduction of the rhythm sequence does not fulfil the 
conditions of a caricature or parody of the song ‘Metall auf Metall’, it is decisive 
in the present case whether the contested reproduction was made for the purpose 
of pastiche within the meaning of Paragraph 51a of the UrhG, read in conjunction 
with Article 5(3)(k) of Directive 2001/29. 
12 On the first question: It is necessary to clarify whether the provision limiting use 
for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 
2001/29 is a catch-all clause at least for artistic engagement with a pre-existing 
work or other object of reference, including sampling, and whether the concept of 
pastiche is subject to limiting criteria, such as the requirement of humour, stylistic 
imitation or tribute. 
13 The appeal court did not rule on the usual meaning of the concept of ‘pastiche’ in 
everyday language in the Member States of the European Union. The range of the 
meaning of the concept of ‘pastiche’ in the everyday language of many Member 
States appears to range from stylistic imitation to recombining arrangements or 
new compositions of already existing material of foreign origin. What all 
meanings appear to have in common, however different they may be in detail, is 
the characteristic of referring to something already in existence. 
14 The fact that pastiche has been regulated in a limiting provision together with 
parody and caricature may suggest that pastiche, parody and caricature have some 
essential characteristics in common. According to the case-law of the Court 
(judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C-201/13, 
paragraph 20), the essential characteristics of parody are, first, to evoke an 
existing work while being noticeably different from it, and secondly, to constitute 
an expression of humour or mockery. However, a parody does not necessarily 
display an original character of its own. 
15 Accordingly, an essential characteristic of pastiche in any event is to be seen in 
the fact that it evokes an existing work while being noticeably different from it. 
However, it appears doubtful whether it is also an essential characteristic of 
pastiche, like parody and caricature, to constitute an expression of humour or 
mockery, or to imitate the style of copyright subject matter or make reference in 
the form of a tribute. Since Article 5(3)(k) of Directive 2001/29 contains an 
exception to the rights provided for in Articles 2 and 3 of the directive, it must be 
PELHAM 
 
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interpreted strictly; however, that interpretation must enable the effectiveness of 
the exception thus circumscribed to be safeguarded and its purpose observed. 
16 The objective of the ‘pastiche’ exception might suggest that this limiting provision 
be seen as a catch-all clause, at least for artistic engagement with a pre-existing 
work or other object of reference, including sampling, which does not require any 
other limiting criteria. The Court recalls, in that regard, the objectives of Directive 
2001/29 in general, which include a harmonisation which will help to implement 
the four freedoms of the internal market, and the achievement of a fair balance 
between, in particular, the rights and interests of authors on the one hand, and the 
rights of users of protected subject matter on the other (see, to that effect, 
judgment, C-201/13, paragraphs 25 and 26). 
17 Accordingly, the ‘pastiche’ exception could potentially apply in the event of 
artistic engagement with the work used. The pastiche limitation could be 
understood as a general limitation of artistic freedom. 
18 The rights of copyright holders, phonogram producers and performers provided 
for in Articles 2 and 3 of Directive 2001/29 enjoy the protection of intellectual 
property under Article 17(2) of the Charter of Fundamental Rights of the 
European Union. On the other hand, any use of works or other protected subject 
matter for the purpose of caricature, parody or pastiche may fall within the scope 
of the protection of freedom of expression or freedom of the arts. Thus, the 
technique of ‘electronically copying sound samples’ (sampling), at issue in the 
present case, where a user takes a sound sample of a phonogram and uses it to 
create a new work, is a form of artistic expression which falls within the scope of 
the freedom of the arts protected by Article 13 of the Charter of Fundamental 
Rights of the European Union.  
19 When introducing the new limitation laid down in Paragraph 51a of the UrhG, the 
German legislature had in mind a broad concept of pastiche, which, subject to a 
fair balance between the rights and interests of copyright holders and users of 
protected subject matter, was intended to include, in particular, practices such as 
sampling, because the cultural techniques of quoting, imitating and borrowing are 
a dominant element of intertextuality and contemporary cultural creation and of 
communication in the ‘social web’. 
20 The second question: It remains necessary to clarify when use within the meaning 
of Article 5(3)(k) of Directive 2001/29 is made ‘for the purpose’ of pastiche. 
According to the referring court, it should be sufficient, in that regard, to 
determine that use as pastiche is recognisable for a person familiar with the 
copyright subject matter to which reference is made and who has the intellectual 
understanding required to perceive the pastiche. 
21 The questions referred are relevant to the decision. The first question referred is 
relevant to the decision in the light of the findings of the appeal court that the song 
‘Nur mir’, while recalling the rhythm sequence taken from ‘Metall auf Metall’, at 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-590/23 
 
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the same time shows perceptible differences in comparison with that sequence, 
and neither imitates the style of the rhythm sequence taken from ‘Metall auf 
Metall’ nor constitutes an expression of humour or mockery. The second question 
referred is relevant to the decision in the light of the fact that the appellate court 
did not make any findings as to the defendants’ intention because it took the view 
that it was not necessary to determine that the processor intended to imitate or pay 
tribute. 
22 The objective of a fair balance between rights and interests takes account of 
Article 5(5) of Directive 2001/29. Accordingly, the exceptions and limitations 
provided for in Article 5 of the directive may only be applied in certain special 
cases which do not conflict with a normal exploitation of the work or other subject 
matter and do not unreasonably prejudice the legitimate interests of the 
rightholder (‘three-step test’). According to the findings of the appeal court, those 
conditions are satisfied in the present case.