The EU Court Clarifies the »Pastiche« Concept: What This Means for Memes, Samples, Remixes, and Fan Art
(dieser Text ist auch in Deutsch verfügbar)
For over two decades, the case of Kraftwerk against Moses Pelham has occupied German courts. The music – two seconds of a rhythmic sequence from »Metal on Metal« that Pelham used in »Only for Me« – became the subject of one of the longest copyright disputes in German legal history. The case twice ended up before the European Court of Justice, once before the German Federal Constitutional Court. On April 14, 2026, the ECJ finally issued a ruling by the Grand Chamber that is likely to have far-reaching implications, extending beyond the original sampling dispute.
In 2021, § 51a of the German Copyright Act introduced a new exception allowing the reproduction, distribution, and public performance of copyrighted material for caricatures, parodies, and pastiches – without the permission of the rights holders, without paying a license. Within online culture, this has been shortened to »the right to memes.« Pelham relied on this provision from its enactment. The German Federal Court of Justice referred the crucial question to the ECJ: What exactly constitutes a »pastiche«?
What the ECJ decided: The term »pastiche« is not defined in Directive 2001/29/EC. Therefore, the ECJ treats it as an autonomous concept of Union law and applies it uniformly to all member states.
The Court found: A »pastiche« is not simply a catch-all term for any creative use of protected material. A »pastiche« exists when a new work references one or more existing works, exhibits discernible differences from them, and engages in an artistic or creative dialogue with these works. This dialogue can take various forms: style imitation, homage, humorous, or critical engagement. Humor is explicitly not a requirement – the term must not be interpreted so narrowly that it merges with parody or caricature and thereby becomes practically redundant.
Plagiarized or hidden imitations do not fall under this definition. The »pastiche« character must be clearly recognizable.
An important clarification concerns the question of whether the user must intend to create a »pastiche.« The ECJ denies this. It suffices that the »pastiche« character is objectively recognizable – for someone who knows the original work and has the necessary intellectual understanding. This ensures legal certainty: it is not what someone had in mind, but what the work objectively represents, that is decisive.
The Court explicitly confirms that sampling can fall under the »pastiche« exception – provided that the extracted audio fragment is used to engage in a discernible creative dialogue with the original work, and the other conditions are met. Sampling is a protected form of artistic expression under Article 13 of the EU Charter of Fundamental Rights; this freedom must be balanced against the right of record companies to protect their investments.
A well-known image that creates an independent creative reference to the original, with new context or text, can be a permissible »pastiche«. A music piece that serves only as background music to a video, without contributing a creative element to the original, is not.
§ 51a of the German Copyright Act does not distinguish between private and commercial use. The ruling does not preclude the possibility of »pastiches« in a commercial context – the more the use is interchangeable and commercial, the more likely it is that a sufficient creative dialogue may not exist.
Important to understand: The »pastiche« exception protects exclusively against copyright claims. Those who use trademarks or prominent figures must still take trademarks, competition, and personality rights into account.
The ruling does not directly address »fan art« – it deals with music sampling. However, the criteria established by the ECJ can be applied to »fan art,« even though there is still a lack of established literature or judgments on the subject. It is, however, likely that »fan art« will be considered a »pastiche« because it meets all the requirements. It is also predictable that large rights holders such as Disney or Warner will continue to try to obtain favorable rulings in court. Their chances of achieving this are, however, now significantly diminished.
»Fan art« that clearly refers to an existing work, exhibits discernible differences from it, and engages in a creative dialogue with the original – such as a tribute to a character, a stylistic reinterpretation, or a critical engagement – is likely to fall under the »pastiche« exception. The Wikipedia article on »fan fiction« already states that fan fiction can also be considered a »pastiche« if they do not sufficiently distance themselves from the original.
It becomes more difficult when »fan art« merely reproduces a character in an original way, without a creative dialogue. This would not be a »pastiche« according to the ruling, but an unauthorized reproduction. Similarly, the »pastiche« exception does not apply if trademarks or the personality rights of real people are involved, such as »fan art« of celebrities or the use of registered character trademarks in a commercial context.
Important: My classification is based on the ECJs ruling, not a legal position confirmed by local courts. Furthermore, I am not a lawyer, but someone who has been following this topic for years (at least partly due to my double life as an artist, Xanathon, who also creates fan art). However, there are still no relevant court decisions. My view is that the legal situation for »fan art« has now significantly improved.
The conclusion:
The ECJ has clarified the »pastiche« concept, thus strengthening remix, sampling, and meme culture in Europe. At the same time, it has clarified that »pastiche« is not a free pass or a catch-all term for any arbitrary creative appropriation. Those who rely on this must demonstrate a demonstrable, objectively recognizable creative dialogue with the original – but even a homage is sufficient for this.
Sources:
European Court of Justice (Grand Chamber), April 14, 2026, C‑590/23 – https://infocuria.curia.europa.eu/tabs/document/C/2023/C‑0590–23-00000000RP-01-P-01/ARRET/319188-DE-1-html
Dr. Thomas Schwenke, Facebook post, April 14, 2026 – https://www.facebook.com/raschwenke/posts/pfbid02VmAofg6A6H1RVzZm1TLgsVXqcxcpHU1hXXwAvVKFoEcD112CUF2atLcsihrR28Gil
Heise Online, Music Sampling: Court Allows »Pastiche« When There’s a Creative Dialogue, April 14, 2060 – https://www.heise.de/news/Freigabe-fuer-Musik-Zitat-EuGH-konkretisiert-Pastiche-Regelung-beim-Sampling-be-11257234.html
Wikipedia: Fan-Fiction (version from April 15, 2026) – https://de.wikipedia.org/wiki/Fan-Fiction
Image licensed on Depositphotos
