On 14 April 2026, the CJEU Grand Chamber handed down its judgment in Pelham II (Case C-590/23), substantially clarifying the scope of the pastiche exception under Article 5(3)(k) of the InfoSoc Directive and reshaping how EU copyright law treats sampling, internet memes and, increasingly, AI-generated outputs that draw on protected works. The ruling introduces a structured, multi-factor test that moves the pastiche defence from a narrow, genre-based concept towards a broader expressive liberty – but with meaningful conditions that practitioners and rights holders must now internalise. Businesses operating across EU Member States face a genuinely complex compliance landscape, because national courts retain discretion in applying the test and implementation choices vary.
The Legal Framework: Article 5(3)(k) Before and After Pelham II
Article 5(3)(k) of the InfoSoc Directive permits Member States to provide an exception for caricature, parody and pastiche. Unlike parody, which had been substantively interpreted by the CJEU in Deckmyn (C-201/13) back in 2014, pastiche remained largely unaddressed at Union level until Pelham II. National courts had filled the gap inconsistently: some treated pastiche as requiring stylistic imitation without direct quotation; others accepted it as a freestanding creative mode distinct from both parody and caricature.
The Grand Chamber in Pelham II confirmed that the three terms – caricature, parody and pastiche – must each be given an autonomous EU law meaning and cannot be collapsed into one another. Pastiche, the Court held, covers works or other subject matter that evoke an existing work, genre, style or author through deliberate imitation or blending, without necessarily requiring humorous or critical intent. This is the decisive break from the earlier, narrower readings: the exception no longer depends on communicating a message of mockery or critique.
At the same time, the Court applied the familiar three-step test from Article 5(5) of the Directive with particular care, emphasising that the exception must not conflict with the normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the right holder. The judgment makes clear that whether a use qualifies as pastiche is a holistic assessment, not a mechanical checklist.
The Pelham II Multi-Factor Test in Practice
Distilling the Grand Chamber's reasoning, practitioners should expect national courts to examine at least the following considerations when assessing a pastiche claim:
- Evocative intent: Does the new work deliberately and recognisably draw on an existing work, author or genre? Accidental resemblance does not engage the exception.
- Transformation and distance: The Court stopped short of requiring transformation as a formal threshold, but the degree to which the new work adds its own expression remains highly relevant to the three-step test.
- Market substitution: Where the new work replaces demand for the original or its derivatives – including licensed sampling revenue – the exception is unlikely to apply in full.
- Substantiality of the taking: The Court did not prescribe a de minimis rule by reference to duration or size, preserving contextual flexibility, but confirmed that taking the most distinctive or commercially significant elements of a work weighs heavily against the defence.
- Attribution and integrity: Moral rights considerations, enforceable under national law, interact with the pastiche exception but are not extinguished by it. This point has particular weight in jurisdictions with strong authors' rights traditions.
Critically, the Court declined to resolve every tension in a single ruling. Several questions – including whether the exception can be contractually waived and how it applies to purely automated outputs – were left to be addressed as they arise in national proceedings or future references.
Sampling: From Pelham I to Pelham II
The Pelham saga began with the Grand Chamber's 2019 ruling (C-476/17), which confirmed that even a two-second sample could infringe the phonogram producer's neighbouring right under Article 2(c) of the InfoSoc Directive, unless the sample was used in a modified form unrecognisable to the ear. Pelham II now adds a complementary layer: even where recognisable sampling would otherwise infringe, it may be covered by the pastiche exception if the use satisfies the multi-factor test.
This is practically significant for the music industry. A sampling artist who takes a recognisable loop and weaves it into a new composition that pays homage to a genre or predecessor may now argue pastiche more plausibly than before. However, the market-substitution prong remains demanding. Where the sample would have been licensed and the licence fee foregone, rights holders retain strong grounds to resist the defence. Legal advisers should expect platform licensing strategies and sample clearance practices to be re-examined in light of Pelham II across the EU, with particular pressure on services operating under DSM Directive upload-filter regimes.
Memes, Remix Culture and User-Generated Content
Internet memes – which routinely reproduce stills from films, photographs and audio clips, overlaying them with text or combining them with other elements – sit at the intersection of parody and pastiche. After Pelham II, the pastiche exception is in principle available for meme creators even where the intent is not satirical. The Court's recognition that evoking a genre or aesthetic tradition, rather than mocking a specific work, can satisfy the exception opens a wider corridor for remix culture.
In practice, however, the position remains precarious for three reasons. First, platform liability under Article 17 of the DSM Directive (implemented differently across Member States) means that even if an individual user has a valid pastiche defence, the platform must still demonstrate it has made best efforts to obtain authorisation or to prevent uploads of flagged works. The exception is a user right, not a platform licence. Second, the three-step test still requires that the meme not unreasonably prejudice the right holder – a condition that commercial viral campaigns or brand-appropriation memes will struggle to meet. Third, moral rights in photographs and audiovisual works remain fully enforceable in most Member States regardless of the exception.
For businesses that commission or publish meme-based marketing, the risk calculus has shifted somewhat in their favour, but it has not been eliminated. A clear editorial purpose, a non-substitutive relationship to the original market, and transparency about the source material all reduce litigation exposure. Businesses should also note that design registration and trade mark rights may overlap with copyright in brand imagery, creating additional vectors of liability that the pastiche exception does not address.
AI-Generated Outputs: The Exception's Most Contested Frontier
The application of the pastiche exception to AI outputs is the question that Pelham II most conspicuously leaves open. Two distinct scenarios arise.
The first is text and data mining during the training phase. Articles 3 and 4 of the DSM Directive provide specific exceptions for TDM, subject to opt-out rights for rights holders under Article 4. The EU AI Act (entered into force in 2024) requires general-purpose AI providers to document their compliance with copyright rules, creating an intersection between AI regulation and copyright enforcement that is now being tested before national courts and regulators. The pastiche exception is not the primary analytical tool for training-phase issues, but it may be relevant where a model is fine-tuned on a specific corpus in a way that reproduces protected expression.
The second – and more immediate – scenario is the generation phase: where an AI system produces an output that imitates the style or reproduces identifiable elements of a protected work. Here the pastiche analysis in Pelham II becomes directly relevant, but with a fundamental complication: the exception as articulated by the Court appears to presuppose a human creative act with evocative intent. A purely automated output lacks subjective intent. Whether a human operator's prompt can substitute for authorial intent, or whether the deploying entity bears responsibility under a different theory, is a question that neither the Grand Chamber nor the EU legislature has yet answered definitively.
The European Commission has indicated, through its ongoing guidance on the AI Act, that it regards copyright compliance as a matter for AI deployers as well as developers. Enforcement cases are beginning to accumulate before national IP courts, and preliminary references to the CJEU on AI and copyright are anticipated. Until the Court or the legislature provides clarity, businesses deploying generative AI for content creation should treat the pastiche exception as a potentially available argument rather than a reliable safe harbour. Risk-mitigation measures – including licensing, output monitoring and human editorial review – remain advisable.
If your organisation is assessing its exposure under the current EU copyright framework or developing a policy for AI-generated content, the intellectual property team at Ferraz & Whitmore can assist. Please reach out at info@ferrazwhitmore.com or visit our contacts page.
Cross-Border Implications and Jurisdictional Variation
Because Article 5(3)(k) is a permissive rather than mandatory exception, Member States that have not implemented it retain no pastiche defence in their national law. Even among implementing states, the contours of the exception reflect domestic drafting choices and interpretive traditions. The Grand Chamber's autonomous EU definition in Pelham II will, over time, harmonise national case law through the mechanism of consistent interpretation, but that process takes years.
For internationally active clients, this means that a sampling campaign, AI content strategy or meme marketing programme assessed as defensible in one Member State may expose the business to IP litigation in another where national courts have not yet absorbed the Pelham II framework. The practical approach is to structure content decisions around the most conservative reasonably foreseeable national standard, while documenting the analysis against the Grand Chamber's criteria.
Cross-border enforcement in the EU is also influenced by the Brussels I Recast Regulation for jurisdiction and the Rome II Regulation for applicable law. In copyright infringement disputes with a multi-territorial dimension, the place of infringement rule under Rome II may result in different national laws applying to different infringing acts – even within a single campaign. Rights holders and defendants alike must map their exposure territory by territory. Ferraz & Whitmore's litigation and arbitration practice regularly advises on exactly this kind of multi-jurisdictional exposure mapping.
The SEP Regulation Withdrawal: A Peripheral but Instructive Parallel
One broader regulatory development is worth noting for context, even though it concerns a different area of IP law. The European Commission withdrew its proposed Standard Essential Patents (SEP) Regulation on 31 July 2025. The European Parliament resolved in November 2025 to challenge that withdrawal before the CJEU, a dispute whose outcome remains unresolved at the time of writing. The episode illustrates a recurring dynamic in EU IP policy: ambitious legislative reform encountering industry resistance, institutional disagreement and litigation uncertainty.
The parallel with the pastiche exception is instructive. In both contexts, rights holders, users and platforms must plan their strategies against a backdrop of regulatory flux, without the certainty that legislative clarification will arrive on any predictable schedule. For further background on the SEP Regulation's trajectory, see our analytical note on the SEP Regulation withdrawal.
Strategic Recommendations for Rights Holders and Content Users
Drawing together the analysis above, the following strategic considerations apply to the main categories of affected parties.
For rights holders – particularly music publishers, film studios, photographers and brand owners:
- Review existing licensing programmes to ensure they address the expanded pastiche exception, particularly in streaming and user-generated content contexts.
- Consider whether platform contractual frameworks adequately preserve infringement claims that fall outside the exception's scope.
- Where moral rights apply under national law, ensure that contractual arrangements and enforcement strategies preserve those rights, which the pastiche exception does not override.
- Engage early with AI developers whose products may generate outputs imitating your catalogue or visual identity; documentary evidence of opt-out notices under Article 4 DSM Directive strengthens subsequent enforcement positions.
For content creators, platforms and AI deployers:
- Document the creative rationale behind any use that may engage the pastiche exception; the evocative intent requirement means that post-hoc justification is weaker than contemporaneous editorial reasoning.
- Do not treat pastiche as a licence to copy wholesale. The three-step test and the market-substitution criterion set a meaningful threshold that bare reproduction will not meet.
- For AI-generated content, implement human review protocols and maintain records of model provenance and training data compliance. These records will matter in any enforcement or regulatory inquiry.
- Seek specialist intellectual property advice before launching content strategies that rely substantially on third-party works, including in the context of text and data mining for AI training.
Outlook: What Comes Next
The Pelham II judgment is best understood as an important step rather than a final settlement. The Court has established the architecture of the pastiche exception at EU level, but significant questions remain open: the precise interaction with AI authorship, the scope of contractual override, the application to purely stylistic imitation without any taking of expression, and the relationship between pastiche and ESMA- or EBA-regulated financial communications that use brand imagery or cultural references. National courts will generate divergent rulings over the next several years before a stable consensus emerges.
The European Commission's ongoing work on the AI Act implementing measures, together with anticipated guidance from the EUR-Lex acquis on TDM and copyright, will add further layers of regulatory context. Businesses that invest now in understanding and documenting their copyright positions – across sampling, meme use and AI deployment – will be materially better placed to manage litigation risk and regulatory inquiry than those who wait for complete clarity.
Ferraz & Whitmore advises companies, funds and creative industry participants on EU copyright strategy, cross-border enforcement and AI-related IP risk. If you would like to discuss how Pelham II affects your specific situation, please contact us at info@ferrazwhitmore.com or through our contacts page.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.