CJEU tackles ‘pastiche’ in Kraftwerk case
A ruling from the EU’s highest court has clarified the meaning of ‘pastiche’ in a long-running dispute over a two-second sample of a song by German electronic-music legends Kraftwerk.
More than 20 years ago, the two co-founders of Kraftwerk brought proceedings before the German courts against the composers of the song Nur mir, released by German rapper Sabrina Setlur, and the track’s producer Pelham.
The composers and producers were accused of infringing copyright by using a two-second rhythm sequence from Kraftwerk’s 1977 track Metall auf Metall.
Exception
The CJEU had ruled in favour of Kraftwerk in 2019, but the current phase of the case relates to the period after 7 June 2021, when an exception to copyright and to the rights of music producers entered into force in Germany.
This authorised, for the purpose of caricature, parody, or pastiche, the reproduction, distribution, and communication to the public of a published work.
Since that exception has its origin in EU law, the Federal Court of Justice asked the EU’s Court of Justice (CJEU) to clarify the scope of the concept of ‘pastiche’.
‘Artistic or creative dialogue’
In its judgment today (14 April), the CJEU said that the ‘pastiche’ exception covered creations that evoked one or more existing works, while being noticeably different from them.
It added that this included sampling some of those works’ characteristic elements protected by copyright, “in order to engage with those works in an artistic or creative dialogue that is recognisable as such”.
“That dialogue can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them, or of humorous or critical engagement with them,” the judges added.
Recognisable
“In order for a finding to be made that use is ‘for the purpose’ of pastiche, it is sufficient that the ‘pastiche’ nature be recognisable for a person who is familiar with the existing work from which the elements have been borrowed,” the ruling continued.
“A finding that the user intended to use the work for that purpose is therefore not necessary,” the judges stated.
The dispute now goes back to the German court for a determination, considering the EU court’s clarification.
Kraftwerk co-founder Ralf Hütter has been a party to the dispute since the death of co-founder Florian Schneider in 2020.