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For the best part of three decades, a case concerning a two-second drum loop has reverberated through the most senior courts of Germany and Europe. In its second judgment in this case (CG and YN v Pelham GmbH and Others (Case C-590/23)), the Court of Justice of the European Union (“CJEU”) has delivered what may be its final word on the matter, ruling on the scope of the “pastiche” exception in EU copyright law. The dispute centres on a two-second sample from the 1977 song Metall auf Metall by the German synth band Kraftwerk. In 1997, two composers and producer Moses Pelham took the short sample and looped it as a baseline for the song Nur mir. The claimants, two members of the band, contended that this sampling infringed their phonographic rights and copyright in the relevant musical work. What followed was a litigation odyssey spanning the Hamburg courts, the Bundesgerichtshof, the German Federal Constitutional Court, and, on two separate occasions, the CJEU. In its earlier 2019 ruling (Pelham and Others, C-476/17), the CJEU held that a phonogram producer may prevent another from using even a very short sample, unless it is included “in a modified form unrecognisable to the ear”. Applying that ruling, the German courts concluded that the sample was recognisable in Nur mir and was hence infringing. However, that decision did not address the pastiche exception, which Germany had not yet transposed into law. Germany subsequently implemented it through Paragraph 51a of the Urheberrechtsgesetz (UrhG), which entered into force on 7 June 2021. Such new law, derived from Article 5(3)(k) of Directive 2001/29, created an exception to the exclusive rights of copyright owners where the otherwise infringing acts were done “for the purpose of caricature, parody or pastiche". The Hamburg Higher Regional Court subsequently held that the sampling constituted a permissible pastiche for the period after 7 June 2021 but, following an appeal by the claimants, the case headed back to the CJEU after the Bundesgerichtshof referred two questions on the pastiche defence. The Bundesgerichtshof posed two questions. • First, is pastiche a “catch-all” exception covering any form of artistic engagement with a pre-existing work, or is it subject to limiting criteria? • Second, does use “for the purpose of” pastiche require subjective intention, or is it sufficient that the pastiche character be objectively recognisable? Read more here: https://lnkd.in/dUNFiHU7 Authors: Tom Scourfield, Tom Reid