Can you use a sample from another musical number?

Can you just use a sample from another song in your own music? According to an April 14, 2026 European Court of Justice ruling in the Pelham II-case (C-590/23) , this is only allowed under strict conditions through the so-called ‘pastiche’ exception. Use is allowed without permission only if the new work clearly evokes the original creation, differs noticeably from it, and demonstrably engages in a “recognizable artistic or creative dialogue,” such as an homage or style imitation. Plagiarism or the mere copying of a beat for commercial or aesthetic convenience remains an infringement of copyright and the phonogram producer right.

The facts and legal context of the Pelham saga

The legal battle behind this ruling reads like a chronicle of modern music history. In 1977, the electronic band Kraftwerk released the song “Metall auf Metall.” Twenty years later, in 1997, hip-hop producers (including Pelham) used a sample of about two seconds of this song's rhythmic loop for the track “Nur mir.” They did this without seeking permission from the rights holders.

This led to a legal war of attrition in Germany that dragged on for nearly 30 years. In 2019, after an initial preliminary ruling, the European Court of Justice ruled in Pelham I, C-476/17) already that producers of phonograms have the exclusive right to prohibit reproductions. Even the reproduction of a two-second fragment is covered by this right, unless the sample is modified in such a way as to be “unrecognizable to the ear”.

Germany subsequently amended its legislation. The German legislature introduced §51a in the Copyright Act, a provision allowing the use of protected material for caricature, parody and pastiche, in line with the European Information Society Directive 2001/29/EC. The German Bundesgerichtshof then returned to the European Court with a fundamental question: what exactly does the legal term ‘pastiche’ mean, and does it give artists a free pass to sample?

The European Court's decision

On April 14, 2026, the Grand Chamber of the European Court of Justice issued its ruling. The Court rejected the contention that the pastiche exception is a kind of general residual category (a safety net or broad fair use clause) for all creative reuse of protected material.

The Court establishes the following strict but clear criteria for the use of a pastiche:

1. Calls and differences: The new creation should evoke an existing work, but at the same time exhibit noticeable differences from it.
2. Artistic dialogue: The purpose of using the protected elements (such as through sampling) must be to engage in an “artistic or creative dialogue” with the original work. This can take many forms, such as an overt imitation of style, a tribute (homage), or a critical confrontation.
3. Objective recognition: Very importantly, no subjective intent of the user (the sampler) needs to be proven. It is sufficient that the “pastiche” character is recognizable to a listener who knows the original work and has sufficient understanding.

The Court explicitly emphasizes that the exception cannot serve as a cover for hidden imitation or plagiarism.

Legal analysis and interpretation

At the heart of this case is the delicate balancing act between two fundamental rights enshrined in the Charter of Fundamental Rights of the European Union: the right to (intellectual) property (Art. 17(2)) and the freedom of arts and expression (Arts. 11 and 13).

As Attorney General Emiliou pointed out in his conclusion prior to the ruling, intellectual property is not an absolute right, but the protection of a phonogram producer's investment or an author's personality right should not be eroded. By defining the concept of ‘pastiche’ in Article 5(3)(k) of the Information Society Directive as an autonomous concept of Union law, the Court warded off the attempt to smuggle an American-style fair use doctrine into the European closed-list system of exceptions.

The requirement of an “artistic dialogue” means that there must be intertextuality. Merely copying a sample because it sounds good or provides an easy basis for a new beat does not qualify as pastiche. The new work must “say something” about, or refer to, the original work. The Court here opts for a pragmatic, objective test: the intention an sich is irrelevant, the result for the informed consumer prevails. This enhances legal certainty and avoids ex-post rationalization by infringers.

Although the Pelham-ruling stems from German proceedings, its scope is fully applicable to Belgian legal practice. Indeed, European Directive 2001/29/EC, on which the Court relies, was transposed in Belgium through the Code of Economic Law (CEL). Specifically, the Court's interpretation carries through to:

1. Article XI.190, 10° CEL: The exception for pastiche under copyright law.
2. Article XI.217, 9° CEL: The similar exception for the neighboring rights of performers and producers.

What this specifically means

The implications of this ruling are significant for the entire creative industry:

• For music producers and artists: Sampling is not a legal free state. Unless a sample is distorted beyond recognition, prior permission (license) and payment is generally required. You can only invoke the pastiche exception if your song demonstrably engages in an artistic dialogue with the original (e.g., a clear homage or stylistic exercise). Are you using a sample purely as instrumental filler? If so, you risk a cease-and-desist claim and damages.
• For record labels and original artists (rights holders): Your intellectual property remains highly protected. You have the legal levers to stop unlawful commercial parasitism via illegal samples, especially when the sampler makes no demonstrable artistic reference to your work.
• For content creators (UGC): Although this case was about phonograms, the definition of pastiche works throughout the online world (think memes, mash-ups and TikToks). Again, reuse is only allowed if there is a recognizable, creative dialogue with the original, not as a pure copy or substitute.

Frequently asked questions (FAQ)

What is the difference between a parody and a pastiche in copyright law?
By definition, a parody requires an expression of humor or mockery, imitating an existing work for laughter or social criticism. A pastiche does not require this comic element; it is an artistic dialogue with the original, such as through a seriously intended stylistic imitation or homage.

Is the pastiche exception different in Belgium than in Germany?
No, because of this ruling, the definition of ‘pastiche’ must be interpreted identically throughout the European Union, and thus also in Belgium (art. XI.190 and XI.217 CEL).

Does this pastiche exception apply in the same way throughout the European Union?
With this ruling, the definition of a ‘pastiche’ has now become a uniform, European concept. This means that countries that have adopted the exception (such as Belgium and Germany) must apply exactly the same strict criteria. However, please note that the pastiche exception in the European directive is optional . Not every EU member state has included it in its national copyright law. Thus, what is a perfectly legal pastiche in Belgium or Germany may still constitute copyright infringement in another member state. So for artists with international distribution, legal customization remains crucial.

Can I use a sample of only 2 seconds without permission?
No, in principle, the length of the sample is not decisive. The European Court previously ruled that the reproduction of an ultra-short fragment requires the consent of the rightholder as soon as the fragment is recognizable to the listener, unless a statutory exception (such as pastiche or the right to quote) applies.

Does the creator of a track have to prove that he intended to make an homage?
No, the subjective intent of the producer is not determinative. It is enough that the pastiche character (the artistic dialogue or homage) is objectively recognizable to a listener familiar with the original work.

Conclusion

The ruling in the Pelham II-case clarifies the limits of the ‘pastiche’ exception in Belgium. While copyright law must respect creative freedom and contemporary techniques such as sampling, it must never come at the expense of the legitimate investments of original artists and producers. The limit lies with demonstrable artistic dialogue: those who want to use the beat will also have to acknowledge the story.