In April 2026, the Court of Justice of the European Union answered a question that appears aesthetic yet arrived dressed as a lawsuit: when taking something from another's work and using it in one's own constitutes a legitimate creation and when it is an illicit copy. The case had a long history, concerning a two-second sample that the producer Moses Pelham took in 1997 from a 1977 Kraftwerk song and looped. Almost thirty years of litigation to settle two seconds of sound. And in the end, to resolve it, the court had to do something that is not the task of judges: to define what distinguishes a new work from a copy.
To qualify for the exception that the law terms pastiche, a work must evoke one or more previous works while being, the court states, perceptibly different from them, and must do so to engage with them in an artistic or creative dialogue recognisable as such. Observe the words: perceptibly different, artistic dialogue. A court of the highest standing in Europe has been compelled to legislate on what renders something a creation rather than a repetition. The question I have pursued for years, that of when a work exists and when there is mere reproduction, reached a court, and the court has had to answer it because rights, money, and freedoms depended upon that response.
The criterion they provided is sound, within the limits of what the law can achieve, even if it does not answer my question but rather their own, which is distinct: when the freedom to create justifies the unauthorised use of material protected by another. And not what constitutes a new work. These are two planes that brush against one another but do not coincide, much as the price of a work and its value as art do not coincide, even if they occasionally touch. The court decides what is lawful to reuse. That something is lawful does not render it art, and that it is art does not render it lawful.
And it is in the word chosen by the court that the distance between the two planes is revealed. The law requires a criterion that can be observed and measured: how closely the result resembles the original, whether an ear or an eye perceives the difference. This is reasonable, as a judge must be able to point to the evidence, yet that criterion excludes precisely the most compelling cases of the art of the last century, those in which the work is almost identical to that which it appropriates and yet is radically other.
A clear example is Sherrie Levine. In 1981, she photographed reproductions of famous photographs by Walker Evans, those of the American Depression, and exhibited those photos of photos under the title After Walker Evans. The perceptible difference between Evans's image and Levine's is minimal, almost non-existent: it is the same image. A court applying the criterion of perceptible difference would find it difficult to see a new work there. And yet, the museums that hold it recognise it as one of the key works of her generation because the difference does not lie in what is seen, it lies in what it does: Levine did not copy Evans, she used his image to question authorship, originality, and the ownership of images, and that question reorganised the field. It becomes a work because it does something the original did not, before one who knows how to view it, not because it is distinguished from it.
Therein lies the difference between the two criteria. The legal one examines the object and measures its distance from the predecessor. The other criterion examines whether the gesture reorganises the manner in which we understand the works, even if the object is identical; not how much the object has changed. An almost exact copy may be an artistic event if it shifts something within the recipient, and a highly visible transformation may not be so if it exhausts itself in the effect. The court could not employ that criterion because one cannot pass judgement on the reorganisation of a field: there is no expert who can measure it. It required something objectifiable, and perceptible difference is just that. It was correct to use it, only it resolves their question, not mine.
There is no reproach for the court, which performed a fine task with the tools at its disposal. However, the case clearly reveals that there are two questions where we usually see one. When someone debates whether an appropriation is legitimate, one must know in what sense they are asking. If they ask whether it is lawful, the answer is provided by the courts and depends on licences, exceptions, and the balancing of rights. If they ask whether it is art, whether there is a work there and not a copy, then no judgement can decide that because that does not occur in the object nor in its distance from another, but in what the gesture reorganises before the one who views it. The law can tell us what we may use. It cannot tell us what, of that which we use, becomes a work.
On the open conversation
This text starts from a real judgment, that of the EU Court of Justice of April 2026 regarding the Kraftwerk sample and the pastiche exception, to distinguish two questions we often confuse: when an appropriation is lawful and when it is a new work. I maintain that the legal criterion of perceptible difference answers the former and not the latter, and I contrast it with cases such as that of Sherrie Levine, whose work is almost identical to what it appropriates and yet reorganises the field. I do not criticise the court's criterion, which is sound in its order; I distinguish its plane from the ontological one. If anyone wishes to intervene from the perspective of copyright, art history, or appropriation theory, this notebook remains open.
Sources
Court of Justice of the European Union (Grand Chamber), judgment of 14 April 2026, case C-590/23 (Pelham II), concerning the 'pastiche' exception (Art. 5(3)(k) of Directive 2001/29/EC). The Court established the criteria and remitted the application to the specific case to the German Federal Court of Justice; it did not declare the sample lawful. The German Federal Court of Justice ruled on 3 September 2026 (case I ZR 74/22): applying that criterion, it held the sampling lawful as pastiche under section 51a of the German Copyright Act. The judgment concerns the claims brought from 7 June 2021, the date that exception entered into force in Germany; the earlier period falls outside it. A constitutional complaint concerning the earlier period (22 December 2002 to 7 June 2021), case 1 BvR 948/23, remains pending before the Federal Constitutional Court and, as of September 2026, has not been decided.
United Kingdom: section 30A of the Copyright, Designs and Patents Act 1988, 'fair dealing' for caricature, parody and pastiche, in force since 1 October 2014.
Sherrie Levine, After Walker Evans (1981): records from the Metropolitan Museum, the Whitney (which describes the visual difference as 'slight' and the conceptual as 'considerable') and the SFMOMA. Artistic example, not judicial precedent.
Other examples of appropriation: Christian Marclay, The Clock (2010); Lubaina Himid, Freedom and Change (1984), based on Picasso. Fair use cases in the US: Koons (lost Rogers, won Blanch); Prince (partial success in Cariou, adverse in Graham and McNatt). None equate the legal criterion with the aesthetic one.