Schalast Law | Tax | View firm profile
Frankfurt am Main, 14th April 2026
Thirty years after proceedings first began, Moses Pelham has once again prevailed before the European Court of Justice. In Case C-590/23, the Court ruled in favor of Pelham, his production partner Martin Haas, and singer Sabrina Setlur. As anticipated, the ECJ did not merely answer the referred questions but also delivered a definition of the concept of pastiche.
The ECJ thereby followed, on the decisive points, the position advanced by Schalast and the Federal Republic of Germany. Art has always built upon what came before it, evolving dynamically and in ways that cannot be predicted in advance. The Grand Chamber correctly held that the concept of pastiche is not a catch-all provision; rather, an artistic engagement with the source work must take place.
The new work must, on one hand, exhibit perceptible differences from the source work. On the other hand, an artistic or creative dialogue with the source work is required. A mere copy, or the extraction of elements from a source recording without artistic purpose, does not constitute a pastiche. Notably, the Grand Chamber expressly confirmed that sampling is, in principle, covered by the pastiche concept.
The law firm Schalast, which represents Pelham, Haas, and the production company 3p, had anticipated precisely this outcome. Partner Prof. Dr. Andreas Walter has been involved in the proceedings since their inception.
It all began with two seconds of drums. In 1997, Moses Pelham used a brief rhythmic sequence from Kraftwerk’s “Metall auf Metall” in the production of Sabrina Setlur’s “Nur mir” — a technique known as sampling that has been standard practice in popular music since the 1980s. Kraftwerk sued. What followed is the longest copyright dispute in the history of the Federal Republic of Germany: one decision by the Hamburg Regional Court; five sets of proceedings before the Federal Court of Justice; three appellate judgments from the Hanseatic Higher Regional Court; two proceedings before the Federal Constitutional Court; and now two rounds before the ECJ.
The courts have divided the dispute into three temporal phases. The first phase — commercially the most significant, covering exploitation up to the entry into force of the European Copyright Directive in December 2002 — has already been finally decided in favor of Pelham, Haas, and 3p; it accounts for the vast majority of the track’s commercial success. Today’s ECJ judgment concerns the third phase, from June 2021 onward: the Court answered the questions referred by the Federal Court of Justice on the pastiche exception in a manner favorable to Schalast’s clients. Music sampling may accordingly be classified as a permissible artistic engagement with a pre-existing work under copyright law.
Still pending is the final decision for the second, middle phase — December 2002 to June 2021. For this period, the Hamburg Court of Appeal and the Federal Court of Justice found a copyright infringement. The Federal Constitutional Court has accepted the constitutional complaint filed against that finding (Ref. 1 BvR 948/25) for decision. The fact that the Court previously ruled in the clients’ favor in this very matter — in 2016 — gives reason for confidence.
What happens next? The ECJ judgment is referred back to the Federal Court of Justice, which will decide the third temporal phase in light of the pastiche definition established today — and will do so in favor of Pelham, Haas, and 3p. In parallel, Schalast awaits the Federal Constitutional Court’s ruling on the still-open middle phase, where a favorable outcome is likewise expected. The proceedings that began in 1997 with a two-second drum rhythm thus take another significant step toward a complete vindication of artistic freedom — and of Moses Pelham.
What at first glance appears to be a dispute between musicians has left a lasting mark on copyright law in Germany and across Europe. The case prompted the Federal Constitutional Court to engage with fundamental copyright questions for the very first time, brought the ECJ into the matter twice, and moved the legislature to enact Section 51a of the German Copyright Act — a dedicated statutory provision for sampling. The definition of the pastiche concept clarified today takes effect immediately across all EU Member States.
For the music world, the implications are clear: sampling as a creative practice — one that has defined genres such as hip-hop, electronic music, and contemporary pop for decades — now has a solid legal foundation in the European pastiche exception. Artists may draw on the cultural heritage, process it, and develop it further, without being forced into predefined categories. This prevents established rights holders of older generations from using copyright as a tool to block the evolution of musical styles and to enclose cultural creation.
The case’s relevance extends further still. Millions of users produce user-generated content daily — memes, GIFs, creative remixes, commentary — that references pre-existing works. A narrow interpretation of the pastiche exception would have brought this everyday digital creativity into conflict with copyright law and would have been incompatible with the freedoms of expression and artistic creation guaranteed by the EU Charter of Fundamental Rights. Platform operators and providers of automated upload filters under Article 17 of the DSM Directive gain legal certainty from this judgment: an open, case-by-case pastiche definition enables proportionate and workable content moderation without suppressing legitimate artistic uses.
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About Schalast
Schalast is one of the leading commercial law firms in the German financial center of Frankfurt am Main. Further locations of the law firm are Berlin, Hamburg, Duesseldorf and Stuttgart. Schalast advises ambitious companies from Germany and around the world. The firm’s more than 100 lawyers are organized in the practice groups Employment Law, Banking & Finance, Corporate/M&A, Dispute
Resolution, IP, IT & Media, Real Estate, Tax, Energy, Infrastructure & Telecommunications, Healthcare & Life Sciences, Antitrust & Foreign Trade Law, Public Procurement Law, and White-Collar and Tax Criminal Law. The notary’s office forms a further focus. The firm is a member of the international Tier 1 network Multilaw and is thus able to assist clients worldwide.
Schalast has supported social projects for years through pro bono work as well as donations and wants to contribute to the topic of sustainability. Therefore, the law firm has derived internal standards derived from the United Nations (UN) Sustainability Development Goals (SDGs) and introduced an SDG Officer. Schalast has been certified as climate neutral since the beginning of 2020 and is a member of the initiatives Climate Change Now, and The Chancery Lane Project. www.schalast.com
Press contact in this matter
Dr. Elisa Antz
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