{"id":102643,"date":"2026-04-14T10:08:54","date_gmt":"2026-04-14T09:08:54","guid":{"rendered":"https:\/\/www.ictrechtswijzer.be\/?p=102643"},"modified":"2026-04-14T11:49:26","modified_gmt":"2026-04-14T10:49:26","slug":"may-you-use-a-sample-from-another-musical-number","status":"publish","type":"post","link":"https:\/\/www.ictrechtswijzer.be\/en\/mag-je-een-sample-van-een-ander-muzieknummer-gebruiken\/","title":{"rendered":"Can you use a sample from another musical number?"},"content":{"rendered":"

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<\/em>-case (C-590\/23)<\/a> , this is only allowed under strict conditions through the so-called \u2018pastiche\u2019 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 \u201crecognizable artistic or creative dialogue,\u201d 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<\/a> and the phonogram producer right<\/a>.<\/p>\n\n\n\n

The facts and legal context of the Pelham saga<\/h2>\n\n\n\n

The legal battle behind this ruling reads like a chronicle of modern music history. In 1977, the electronic band Kraftwerk released the song \u201cMetall auf Metall.\u201d 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 \u201cNur mir.\u201d They did this without seeking permission from the rights holders.<\/p>\n\n\n\n

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<\/em>, C-476\/17<\/a>) 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 \u201cunrecognizable to the ear\u201d.<\/p>\n\n\n\n

Germany subsequently amended its legislation. The German legislature introduced \u00a751a 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<\/a>. The German Bundesgerichtshof then returned to the European Court with a fundamental question: what exactly does the legal term \u2018pastiche\u2019 mean, and does it give artists a free pass to sample?<\/p>\n\n\n\n

The European Court's decision <\/h2>\n\n\n\n

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.<\/p>\n\n\n\n

The Court establishes the following strict but clear criteria for the use of a pastiche:<\/p>\n\n\n\n

    \n
  1. Calls and differences:<\/strong> The new creation should evoke an existing work, but at the same time exhibit noticeable differences from it.<\/li>\n\n\n\n
  2. Artistic dialogue:<\/strong> The purpose of using the protected elements (such as through sampling) must be to engage in an \u201cartistic or creative dialogue\u201d with the original work. This can take many forms, such as an overt imitation of style, a tribute (homage), or a critical confrontation.<\/li>\n\n\n\n
  3. Objective recognition:<\/strong> Very importantly, no subjective intent of the user (the sampler) needs to be proven. It is sufficient that the \u201cpastiche\u201d character is recognizable to a listener who knows the original work and has sufficient understanding.<\/li>\n<\/ol>\n\n\n\n

    The Court explicitly emphasizes that the exception cannot serve as a cover for hidden imitation or plagiarism.<\/p>\n\n\n\n

    Legal analysis and interpretation<\/h2>\n\n\n\n

    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).<\/p>\n\n\n\n

    As Attorney General Emiliou pointed out in his conclusion<\/a> 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 \u2018pastiche\u2019 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.<\/p>\n\n\n\n

    The requirement of an \u201cartistic dialogue\u201d 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 \u201csay something\u201d 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.<\/p>\n\n\n\n

    Although the Pelham<\/em>-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)<\/a>. Specifically, the Court's interpretation carries through to:<\/p>\n\n\n\n

      \n
    1. Article XI.190, 10\u00b0 CEL<\/strong>: The exception for pastiche under copyright law.<\/li>\n\n\n\n
    2. Article XI.217, 9\u00b0 CEL<\/strong>: The similar exception for the neighboring rights of performers and producers.<\/li>\n<\/ol>\n\n\n\n

      What this specifically means<\/h2>\n\n\n\n

      The implications of this ruling are significant for the entire creative industry:<\/p>\n\n\n\n