{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-590-23-62023cj0590","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-590-23-62023cj0590)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-11-03","fingerprint":"ewai:eu:96c5d4","proof":"sha256:2bad82ce458dfa1ad05aba10e8c9633b8bfc7a4fbb8dfc82cb1a4bda11fc7892","jurisdiction":"eu","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"eu:c-590-23-62023cj0590","jurisdiction":"eu","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"Front matter","paragraphs":["para_1","para_2","para_3","para_4","para_5","para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13","para_14","para_15","para_16","para_17","para_18","para_19","para_20","para_21","para_22","para_23","para_24"],"kind":"front_matter"},{"title":"Judgment","paragraphs":["para_25","para_26","para_27"],"kind":"assessment"},{"title":"Legal context","paragraphs":["para_28"],"kind":"legal_framework"},{"title":"European Union law","paragraphs":["para_29","para_30","para_31","para_32","para_33","para_34","para_35","para_36","para_37","para_38","para_39","para_40","para_41","para_42","para_43","para_44","para_45","para_46","para_47","para_48","para_49","para_50","para_51","para_52","para_53","para_54","para_55","para_56","para_57","para_58","para_59"],"kind":"legal_framework"},{"title":"German law","paragraphs":["para_60","para_61","para_62","para_63"],"kind":"legal_framework"},{"title":"The dispute in the main proceedings and the questions referred for a preliminary ruling","paragraphs":["para_64","para_65","para_66","para_67","para_68","para_69","para_70","para_71","para_72","para_73","para_74","para_75","para_76","para_77","para_78","para_79","para_80","para_81","para_82","para_83","para_84","para_85","para_86","para_87","para_88","para_89"],"kind":"facts"},{"title":"Consideration of the questions referred","paragraphs":["para_90"],"kind":"questions"},{"title":"The first question","paragraphs":["para_91","para_92","para_93","para_94","para_95","para_96","para_97","para_98","para_99","para_100","para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111","para_112","para_113","para_114","para_115","para_116","para_117","para_118"],"kind":"assessment"},{"title":"The second question","paragraphs":["para_119","para_120","para_121","para_122","para_123"],"kind":"assessment"},{"title":"Costs","paragraphs":["para_124","para_125"],"kind":"costs"},{"title":"On those grounds, the Court (Grand Chamber) hereby rules:","paragraphs":["para_126","para_127","para_128","para_129","para_130","para_131","para_132"],"kind":"operative"}],"paragraphs":[{"text":"Provisional text","paragraph_id":"para_1"},{"text":"JUDGMENT OF THE COURT (Grand Chamber)","paragraph_id":"para_2"},{"text":"14 April 2026 ( * )","paragraph_id":"para_3"},{"text":"( Reference for a preliminary ruling – Copyright and related rights – Directive 2001/29/EC – Information society – Harmonisation of certain aspects of copyright and related rights – Article 2 – Reproduction right – Article 5 – Exceptions and limitations – Article 5(3)(k) – Concept of ‘pastiche’ – Us …","paragraph_id":"para_4"},{"text":"In Case C‑590/23,","paragraph_id":"para_5"},{"text":"REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 14 September 2023, received at the Court on 25 September 2023, in the proceedings","paragraph_id":"para_6"},{"text":"CG,","paragraph_id":"para_7"},{"text":"YN, acting as successor in title to RL,","paragraph_id":"para_8"},{"text":"v","paragraph_id":"para_9"},{"text":"Pelham GmbH,","paragraph_id":"para_10"},{"text":"SD,","paragraph_id":"para_11"},{"text":"UP,","paragraph_id":"para_12"},{"text":"THE COURT (Grand Chamber),","paragraph_id":"para_13"},{"text":"composed of K. Lenaerts, President, T. von Danwitz, Vice-President, K. Jürimäe, C. Lycourgos, I. Jarukaitis, I. Ziemele (Rapporteur) and F. Schalin, Presidents of Chambers, S. Rodin, M. Gavalec, S. Gervasoni and N. Fenger, Judges,","paragraph_id":"para_14"},{"text":"Advocate General: N. Emiliou,","paragraph_id":"para_15"},{"text":"Registrar: M. Krausenböck, Administrator,","paragraph_id":"para_16"},{"text":"having regard to the written procedure and further to the hearing on 14 January 2025,","paragraph_id":"para_17"},{"text":"after considering the observations submitted on behalf of:","paragraph_id":"para_18"},{"text":"–        CG and YN, by H. Lindhorst, Rechtsanwalt,","paragraph_id":"para_19"},{"text":"–        Pelham GmbH, SD and UP, by S. Scherer, L. Schramke and A. Walter, Rechtsanwälte,","paragraph_id":"para_20"},{"text":"–        the German Government, by J. Möller, M. Hellmann and J. Simon, acting as Agents,","paragraph_id":"para_21"},{"text":"–        the European Commission, by J. Samnadda and T. Scharf, acting as Agents,","paragraph_id":"para_22"},{"text":"after hearing the Opinion of the Advocate General at the sitting on 17 June 2025,","paragraph_id":"para_23"},{"text":"gives the following","paragraph_id":"para_24"},{"text":"Judgment","paragraph_id":"para_25"},{"text":"1         This request for a preliminary ruling concerns the interpretation of Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).","paragraph_id":"para_26"},{"text":"2         The request has been made in proceedings between, on the one hand, CG and YN, who is RL’s successor in title, and, on the other, Pelham GmbH, SD and UP (together, ‘Pelham and Others’), concerning the use, in the recording of the song ‘ Nur mir ’, composed by SD and UP and produced by Pelham, of an approximately two-second rhythm sequence taken from a phonogram of the band Kraftwerk, of which CG and RL are the founders.","paragraph_id":"para_27"},{"text":"Legal context","paragraph_id":"para_28"},{"text":"European Union law","paragraph_id":"para_29"},{"text":"3         Recitals 3, 4, 9, 10, 31 and 32 of Directive 2001/29 state:","paragraph_id":"para_30"},{"text":"‘(3)      The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.","paragraph_id":"para_31"},{"text":"(4)      A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to …","paragraph_id":"para_32"},{"text":"…","paragraph_id":"para_33"},{"text":"(9)      Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.","paragraph_id":"para_34"},{"text":"(10)      If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia p …","paragraph_id":"para_35"},{"text":"…","paragraph_id":"para_36"},{"text":"(31)      A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member Sta …","paragraph_id":"para_37"},{"text":"(32)      This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. Some exceptions or limitations only apply to the reproduction right, where appropriate. This list takes due account of the different l …","paragraph_id":"para_38"},{"text":"4         Under Article 2 of that directive, entitled ‘Reproduction right’:","paragraph_id":"para_39"},{"text":"‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:","paragraph_id":"para_40"},{"text":"(a)      for authors, of their works;","paragraph_id":"para_41"},{"text":"(b)      for performers, of fixations of their performances;","paragraph_id":"para_42"},{"text":"(c)      for phonogram producers, of their phonograms;","paragraph_id":"para_43"},{"text":"…’","paragraph_id":"para_44"},{"text":"5         Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides:","paragraph_id":"para_45"},{"text":"‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.","paragraph_id":"para_46"},{"text":"2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:","paragraph_id":"para_47"},{"text":"(a)      for performers, of fixations of their performances;","paragraph_id":"para_48"},{"text":"(b)      for phonogram producers, of their phonograms;","paragraph_id":"para_49"},{"text":"(c)      for the producers of the first fixations of films, of the original and copies of their films;","paragraph_id":"para_50"},{"text":"(d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.","paragraph_id":"para_51"},{"text":"3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’","paragraph_id":"para_52"},{"text":"6         Article 5 of that directive, entitled ‘Exceptions and limitations’, provides:","paragraph_id":"para_53"},{"text":"‘…","paragraph_id":"para_54"},{"text":"3.      Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:","paragraph_id":"para_55"},{"text":"…","paragraph_id":"para_56"},{"text":"(k)      use for the purpose of caricature, parody or pastiche;","paragraph_id":"para_57"},{"text":"…","paragraph_id":"para_58"},{"text":"5.      The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’","paragraph_id":"para_59"},{"text":"German law","paragraph_id":"para_60"},{"text":"7         Paragraph 51a of the Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz) (Law on copyright and related rights (Law on Copyright)) of 9 September 1965 (BGBl. 1965 I, p. 1273), in the version applicable to the dispute in the main proceedings (‘the UrhG’), entered into force on 7 June 2021 and provides:","paragraph_id":"para_61"},{"text":"‘The reproduction, distribution and communication to the public of a published work shall be authorised for the purpose of caricature, parody or pastiche. The authorisation referred to in the first sentence shall cover the use of an image or other reproduction of the work used, even if that image or other reproduction is itself protected by copyright or a related right.’","paragraph_id":"para_62"},{"text":"8         Under Paragraph 83 and Paragraph 85(4) of the UrhG, Section 6 of Part 1 of that law, of which Paragraph 51a is part, applies mutatis mutandis to the rights of performers and to the rights of phonogram producers.","paragraph_id":"para_63"},{"text":"The dispute in the main proceedings and the questions referred for a preliminary ruling","paragraph_id":"para_64"},{"text":"9         SD and UP composed the song ‘ Nur mir ’, which was released on phonograms produced by Pelham in 1997.","paragraph_id":"para_65"},{"text":"10       CG and RL, who died in 2020, founded the band Kraftwerk, which published, in 1977, a phonogram containing the song ‘ Metall auf Metall ’.","paragraph_id":"para_66"},{"text":"11       CG and YN, who is RL’s successor in title, submit that Pelham and Others electronically copied (sampled) approximately two seconds of a rhythm sequence from the song ‘ Metall auf Metall ’ and used that sample in a continuous loop in the song ‘ Nur mir ’, although it would have been possible for them to record that sequence themselves.","paragraph_id":"para_67"},{"text":"12       CG and YN’s principal claim is that Pelham and Others infringed their copyright-related right that they hold as phonogram producers. They allege, in the alternative, infringement of the related right which they hold as performers and, in the further alternative, infringement of CG’s copyright over the musical work. Lastly, in the further alternative, they allege that Pelham and Others infringed the rules on competition penalising free-riding.","paragraph_id":"para_68"},{"text":"13       CG and RL brought an action before the Landgericht Hamburg (Regional Court, Hamburg, Germany) seeking a prohibitory injunction, damages, the provision of information and the surrender of the phonograms for the purposes of their destruction.","paragraph_id":"para_69"},{"text":"14       By judgment of 8 October 2004, the Landgericht Hamburg (Regional Court, Hamburg) upheld that action, and the appeal brought by Pelham and Others against that judgment before the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) was dismissed by judgment of 7 June 2006. Fol …","paragraph_id":"para_70"},{"text":"15       That judgment of 13 December 2012 and the previous judgment of the Bundesgerichtshof (Federal Court of Justice) of 20 November 2008 as well as the second judgment of the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) of 17 August 2011 were set aside by the Bundesverfassungsgericht (Federal Constitutional Court, Germany), which referred the case back to the Bundesgerichtshof (Federal Court of Justice).","paragraph_id":"para_71"},{"text":"16       In the context of those third proceedings on an appeal on a point of law ( Revision ), the Bundesgerichtshof (Federal Court of Justice) made a request to the Court of Justice for a preliminary ruling concerning, inter alia, the interpretation of Article 2(c) and Article 5(3)(d) of Directive …","paragraph_id":"para_72"},{"text":"17       By the judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624), the Court of Justice held, inter alia, that Article 2(c) of Directive 2001/29 must, in the light of the Charter of Fundamental Rights of the European Union (‘the Charter’), be interpreted as meaning that the phono …","paragraph_id":"para_73"},{"text":"18       By judgment of 30 April 2020, the Bundesgerichtshof (Federal Court of Justice) set aside the judgment of the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) of 7 June 2006 and referred the case back to that latter court. By judgment of 28 April 2022, the Oberlandesgericht Hamburg …","paragraph_id":"para_74"},{"text":"19       As regards the first period, that is to say, prior to the end of the period for transposition of Directive 2001/29, which expired on 22 December 2002, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) ruled out any infringement of a copyright or of a related right on the basis of the provisions of the UrhG in their version applicable during that period.","paragraph_id":"para_75"},{"text":"20       As regards the second period, from the expiry of the period for transposition of Directive 2001/29 until the entry into force, on 7 June 2021, of the rule defining the limitations of copyright laid down in Paragraph 51a of the UrhG, the Oberlandesgericht Hamburg (Higher Regional Court, Hamb …","paragraph_id":"para_76"},{"text":"21       As regards the period from the entry into force, on 7 June 2021, of Paragraph 51a of the UrhG, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) ruled out any infringement of copyright or of related rights, taking the view that the reproduction, by means of sampling, of the rhythm sequence of the song ‘ Metall auf Metall ’ constituted use for the purpose of ‘pastiche’, authorised under that provision.","paragraph_id":"para_77"},{"text":"22       CG and YN brought an appeal on a point of law ( Revision ) before the Bundesgerichtshof (Federal Court of Justice), which is the referring court, against the part of that judgment of 28 April 2022 dismissing their claims in so far as they related to the period after 7 June 2021.","paragraph_id":"para_78"},{"text":"23       The referring court considers that the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) was fully entitled to find that there had been an infringement of the rights held by the appellants in the main proceedings as phonogram producers and performers on the ground that Pelham and Others had reproduced the rhythm sequence concerned in a form which, although slightly modified, was nevertheless recognisable to the ear.","paragraph_id":"para_79"},{"text":"24       The referring court considers that the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) also did not err in law in finding that that rhythm sequence constituted a musical work liable to copyright protection.","paragraph_id":"para_80"},{"text":"25       However, the referring court states that, under the first sentence of Paragraph 51a of the UrhG, the reproduction, distribution and communication to the public of a published work are to be authorised for the purpose of caricature, parody or pastiche. That court adds that, in accordance with Paragraph 83 and Paragraph 85(4) of the UrhG, that provision is applicable to the related rights of performers and of phonogram producers.","paragraph_id":"para_81"},{"text":"26       Taking the view that the reproduction of the rhythm sequence at issue does not meet the requirements for classification as ‘caricature’ or ‘parody’, given that there is nothing to suggest that the song ‘ Nur mir ’ is an expression of humour or mockery, the Bundesgerichtshof (Federal Court o …","paragraph_id":"para_82"},{"text":"27       To that end, the Bundesgerichtshof (Federal Court of Justice) asks, first, whether the rule defining the limitations of copyright and related rights as regards the use of a work or other subject matter for the purpose of pastiche, within the meaning of Article 5(3)(k) of Directive 2001/29, …","paragraph_id":"para_83"},{"text":"28       According to the referring court, that question is decisive for the outcome of the dispute in the main proceedings, in the light of the finding, made by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg), that the song ‘ Nur mir ’ evokes the rhythm sequence taken from the song ‘ …","paragraph_id":"para_84"},{"text":"29       The Bundesgerichtshof (Federal Court of Justice) states, in that regard, that it could follow from the fact that the exceptions for pastiche, caricature and parody are governed by the same provision that those three exceptions have common essential characteristics, in particular that of evo …","paragraph_id":"para_85"},{"text":"30       Second, the Bundesgerichtshof (Federal Court of Justice) asks whether a finding that a work or other subject matter protected by copyright is used ‘for the purpose’ of pastiche presupposes an intention on the part of the user to use that protected work or subject matter for that purpose, si …","paragraph_id":"para_86"},{"text":"31       In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:","paragraph_id":"para_87"},{"text":"‘(1)      Is the provision limiting use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive [2001/29] … catch-all [in nature ( Auffangtatbestand )] at least for artistic engagement with a pre-existing work or other object of reference, including sampling? Is the concept of pastiche subject to limiting criteria, such as the requirement of humour, stylistic imitation or tribute?","paragraph_id":"para_88"},{"text":"(2)      Does use “for the purpose of” pastiche within the meaning of Article 5(3)(k) of Directive [2001/29] require the determination of an intention on the part of the user to use copyright subject matter for the purpose of a pastiche, or is it sufficient for the pastiche character to be recognisable for a person familiar with the copyright subject matter who has the intellectual understanding required to perceive the pastiche?’","paragraph_id":"para_89"},{"text":"Consideration of the questions referred","paragraph_id":"para_90"},{"text":"The first question","paragraph_id":"para_91"},{"text":"32       By its first question, the referring court asks, in essence, whether Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the exception for ‘pastiche’, within the meaning of that provision, has a catch-all nature ( Auffangtatbestand ) which covers, at the very least, any …","paragraph_id":"para_92"},{"text":"33       Under Article 5(3)(k) of Directive 2001/29, Member States may provide for exceptions or limitations to the exclusive rights of reproduction and communication to the public referred to in Articles 2 and 3 of that directive, where there is use for the purpose of caricature, parody or pastiche.","paragraph_id":"para_93"},{"text":"34       Since the concept of ‘pastiche’ is not defined by Directive 2001/29 and Article 5(3)(k) thereof makes no reference to national law as regards the meaning to be given to that concept, that concept must, according to settled case-law, be regarded as an autonomous concept of EU law, the interp …","paragraph_id":"para_94"},{"text":"35       As regards, first, the usual meaning of the term ‘pastiche’, it must be noted, in essence, as the Advocate General observed in points 49 to 57 of his Opinion, that that term is rarely used in everyday language and that, although it is commonly used to designate a creation in a style which imitates that of another work, artist or works belonging to the same artistic movement, it nevertheless encompasses diverse meanings.","paragraph_id":"para_95"},{"text":"36       Thus, according to some meanings, even a concealed imitation that is made with an intent to deceive may be classified as ‘pastiche’, whereas other meanings require an overt, recognisable use of characteristic elements of one or more earlier works in a new creation imitating that earlier work or those earlier works with a view to developing an artistic or creative dialogue with them.","paragraph_id":"para_96"},{"text":"37       Furthermore, while some meanings restrict the concept of pastiche to humorous or satirical imitations and others to stylistic imitations, many meanings recognise that the use covered by that concept may take different forms and take place with various intentions, such as the intention of paying tribute to the work or works subject to the pastiche, of expressing a form of humour or of criticism, or of engaging in a pure stylistic exercise.","paragraph_id":"para_97"},{"text":"38       Consequently, given that the usual meaning of the term ‘pastiche’ is not devoid of ambiguity, its interpretation must be based on the context in which that term occurs and the objectives pursued by Article 5(3)(k) of Directive 2001/29.","paragraph_id":"para_98"},{"text":"39       As regards, second, the context in which the concept of ‘pastiche’ occurs, it must be noted that, in addition to pastiche, Article 5(3)(k) of Directive 2001/29 makes reference, as exceptions to the exclusive rights of reproduction and of communication to the public referred to in Articles 2 and 3 of that directive, to ‘caricature’ and ‘parody’.","paragraph_id":"para_99"},{"text":"40       The fact that those three concepts are contained within the same provision permits the inference that, in the mind of the EU legislature, they have certain common essential characteristics, that is to say, in particular, that of evoking an existing work while being noticeably different from it (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds , C‑201/13, EU:C:2014:2132, paragraph 20).","paragraph_id":"para_100"},{"text":"41       Nevertheless, as the Advocate General observed, in essence, in points 62 and 69 of his Opinion, by listing, on equal footing, three distinct concepts in Article 5(3)(k) of Directive 2001/29, the EU legislature intended to permit three categories of use which, although they may overlap in pa …","paragraph_id":"para_101"},{"text":"42       It follows that although pastiche may, like parody and caricature, constitute an expression of humour or mockery (see, to that effect, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds , C‑201/13, EU:C:2014:2132, paragraph 20), it cannot be required for that necessarily to be the cas …","paragraph_id":"para_102"},{"text":"43       Furthermore, the concept of ‘pastiche’ cannot be interpreted as covering every creation that evokes an existing work and is noticeably different from it, since such an interpretation would, as is clear from paragraph 40 above, have the effect of rendering redundant the other two exceptions listed in Article 5(3)(k) of Directive 2001/29.","paragraph_id":"para_103"},{"text":"44       In addition, as the Advocate General observed, in essence, in points 69 and 71 of his Opinion and as is clear from paragraph 40 above, nothing in the context in which Article 5(3)(k) of Directive 2001/29 or, more generally, Article 5 thereof, occurs indicates that the exception for ‘pastiche’ was designed by the EU legislature to have a catch-all nature covering every form of creative use of copyright-protected material.","paragraph_id":"para_104"},{"text":"45       As regards, third, the objective referred to in Article 5(3)(k) of Directive 2001/29, it is clear from recitals 3 and 31 of Directive 2001/29 that Article 5(3)(k) of that directive seeks to safeguard, in particular in the electronic environment, a fair balance between, on the one hand, the …","paragraph_id":"para_105"},{"text":"46       It is true that, as is clear from recitals 4, 9 and 10 of Directive 2001/29, that directive seeks to ensure a high level of protection of copyright and related rights by conferring, in Articles 2 and 3 thereof, exclusive rights of reproduction and communication to the public. Nevertheless, …","paragraph_id":"para_106"},{"text":"47       It follows that the interpretation and application, in a particular case, of the exceptions provided for in Article 5(3)(k) of Directive 2001/29 must strike a fair balance between, on the one hand, the interests and rights of the persons referred to in Articles 2 and 3 of that directive, an …","paragraph_id":"para_107"},{"text":"48       In particular, in view of the objective pursued by Article 5(3)(k) of Directive 2001/29 and the fact that the exceptions set out in that provision do themselves confer rights on the users of protected subject matter which are intended to ensure observance of fundamental freedoms, the concep …","paragraph_id":"para_108"},{"text":"49       In those circumstances, it is important to note that the concept of ‘pastiche’ cannot cover concealed imitations of protected subject matter or plagiarism. Even supposing that such forms of use of copyright-protected subject matter could, under certain conditions, come within the scope of f …","paragraph_id":"para_109"},{"text":"50       Furthermore, as regards the question which forms of overt use of protected subject matter are specifically covered by the concept of ‘pastiche’, it should be stated, having regard to the objective pursued by Article 5(3)(k) of Directive 2001/29, which is to ensure respect for the freedom of …","paragraph_id":"para_110"},{"text":"51       In that regard, it must first of all be stated that, in order for such a dialogue to be engaged in, it is necessary that the elements used in the new creation be characteristic of the work or works from which they originate.","paragraph_id":"para_111"},{"text":"52       Next, as the Advocate General observed, in essence, in points 65 and 66 of his Opinion, in so far as only the use of elements of a work which, individually or in combination, are protected by copyright may require the authorisation of the rightholder, the exception for pastiche must, to a certain extent, allow the use of such protected elements, otherwise it would be ineffective.","paragraph_id":"para_112"},{"text":"53       Lastly, the artistic or creative dialogue with the work or works from which the elements used originate may take different forms, in particular the form of a stylistic imitation of those works, of a tribute to them, or of a humorous or critical engagement with them.","paragraph_id":"para_113"},{"text":"54       In the present case, the referring court seeks to determine, in particular, whether the reproduction, by means of sampling, of the rhythm sequence of a song is such as to be covered by the exception for ‘pastiche’, provided for in Article 5(3)(k) of Directive 2001/29.","paragraph_id":"para_114"},{"text":"55       In that regard, it must be recalled, first, that that technique, which consists in a user taking a sample from a phonogram, most often by means of electronic equipment, and using the sample for the purpose of creating a new work, constitutes a form of artistic expression which is covered by …","paragraph_id":"para_115"},{"text":"56       Second, the phonogram producer’s exclusive right under Article 2(c) of Directive 2001/29 to authorise or prohibit the reproduction of his or her phonogram allows him or her, in principle, to prevent another person from taking a sound sample of his or her phonogram for the purposes of includ …","paragraph_id":"para_116"},{"text":"57       Thus, the fair balance which has to be ensured between the protection of the freedom of the arts and the protection of copyright and related rights is achieved where the exception for ‘pastiche’ covers reproduction, by means of sampling, of the rhythm sequence of a song, provided that the sample thus taken is used for the purpose of creating a work that is in line with the requirements set out in paragraphs 49 to 53 above.","paragraph_id":"para_117"},{"text":"58       In the light of all the foregoing considerations, the answer to the first question is that Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the exception for ‘pastiche’, within the meaning of that provision, does not have a catch-all nature ( Auffangtatbestand ) but …","paragraph_id":"para_118"},{"text":"The second question","paragraph_id":"para_119"},{"text":"59       By its second question, the referring court asks, in essence, whether Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that, in order for use to be ‘for the purpose’ of pastiche, within the meaning of that provision, a finding is necessary that the user wishing to rely on …","paragraph_id":"para_120"},{"text":"60       As follows from the answer to the first question, classification as pastiche implies, inter alia, that in the new creation, which may take different forms, protected characteristic elements of the existing work are used in order to engage with that work in an artistic or creative dialogue that is recognisable as such.","paragraph_id":"para_121"},{"text":"61       Nevertheless, as the Advocate General stated, in essence, in point 82 of his Opinion, in order to guarantee legal certainty, the question whether that is the case must be assessed objectively, with the result that the ‘pastiche’ nature must be recognisable for persons familiar with the existing work from which those elements have been borrowed.","paragraph_id":"para_122"},{"text":"62       It follows that the answer to the second question is that Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that, in order for use to be ‘for the purpose’ of pastiche, within the meaning of that provision, 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.","paragraph_id":"para_123"},{"text":"Costs","paragraph_id":"para_124"},{"text":"63       Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.","paragraph_id":"para_125"},{"text":"On those grounds, the Court (Grand Chamber) hereby rules:","paragraph_id":"para_126"},{"text":"1.       Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society","paragraph_id":"para_127"},{"text":"must be interpreted as meaning that the exception for ‘pastiche’, within the meaning of that provision, does not have a catch-all nature ( Auffangtatbestand ) but covers creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of …","paragraph_id":"para_128"},{"text":"2.       Article 5(3)(k) of Directive 2001/29","paragraph_id":"para_129"},{"text":"must be interpreted as meaning that, in order for use to be ‘for the purpose’ of pastiche, within the meaning of that provision, 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.","paragraph_id":"para_130"},{"text":"[Signatures]","paragraph_id":"para_131"},{"text":"*       Language of the case: German.","paragraph_id":"para_132"}],"operative_part":"On those grounds, the Court (Grand Chamber) hereby rules:\n\n1.       Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society\n\nmust be interpreted as meaning …","word_count":6412,"cites":["C-476/17","C-201/13","C-516/17","C-469/17"],"sha256":"1c5a53685eaf6bbc1035f80434aed432855c789a0e7caf7bd240c8f7d3941b80","source_url":"https://publications.europa.eu/resource/celex/62023CJ0590","fetched_at":"2026-10-01T14:19:42.094+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/eu/c-590-23-62023cj0590","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-590-23-62023cj0590","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-590-23-62023cj0590","changes":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-590-23-62023cj0590","verification":{"stored_sha256":"1c5a53685eaf6bbc1035f80434aed432855c789a0e7caf7bd240c8f7d3941b80","recomputed_sha256":"1c5a53685eaf6bbc1035f80434aed432855c789a0e7caf7bd240c8f7d3941b80","intact":true,"checked_at":"2026-11-03T11:36:23.933Z"},"verification_scope":{"stored_hash_is_source_verification":false,"official_source_comparison":"not_performed","legal_review":"not_assessed"},"decision_object":{"schema_version":"1","object_id":"decision:eu:c-590-23-62023cj0590","judgment_class":"E","operative_part":"present","cites_count":4,"word_count":6412,"decision_url":null},"agent_links":{"agent_root":"https://legal.exploreworldai.com/agent.json","agent_overview":"https://legal.exploreworldai.com/api/public/rapid/agent/overview"}},"hash":"sha256:2bad82ce458dfa1ad05aba10e8c9633b8bfc7a4fbb8dfc82cb1a4bda11fc7892","version":"legal-2026-11-03","expires":"2026-11-04T00:00:00.000Z","dependency":{"index_version":"legal-2026-11-03+legal-2026-11-03+2026-11-03T08:46:54","content_hash":"sha256:2bad82ce458dfa1ad05aba10e8c9633b8bfc7a4fbb8dfc82cb1a4bda11fc7892","revalidate_after":"2026-11-03T12:36:24.236Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-590-23-62023cj0590","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-590-23-62023cj0590"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-590-23-62023cj0590"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-590-23-62023cj0590"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=eu"}],"disclaimer":"Source reference with official identifier. 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