Pelham (Notion de “pastiche”)

Provisional text OPINION OF ADVOCATE GENERALEMILIOUdelivered on 17 June 2025 (1)Case C‑590/23 CG,YNv Pelham Gmb H,SD,UP(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))( Reference for a preliminary ruling – Copyright and related rights – Information society – Directive 2001/29/EC – Article 2 – Reproduction rights – Scope – Parts of works – Parts of phonograms – Sampling – Exceptions and limitations – Article 5(3)(k) – Use for the purpose of pastiche – Scope – Fundamental rights – Charter of Fundamental Rights of the European Union – Article 13 – Freedom of the arts )I.      Introduction 1.        The present reference for a preliminary ruling is the second one made by the Bundesgerichtshof (Federal Court of Justice, Germany) (‘the BGH’) in the context of the 20-odd year dispute between the members of the electronic band Kraftwerk, on the one hand, and the hip hop producers SD and UP as well as the production company Pelham Gmb H, on the other. It concerns the use, in a hip hop song (‘Nur mir’) released in 1997 by the latter, of a two-second extract (‘sample’)(2) that they ‘borrowed’ without authorisation from the phonogram (3) of an avant-garde electronic song (‘Metall auf Metall’) produced by Kraftwerk in 1977.2.        In its judgment in Pelham I, (4) in response to the first reference by the BGH in that dispute, the Court ruled that the use of such ‘samples’ of existing phonograms in new songs falls, in principle, within the...