In its Pelham judgment, the CJEU sets out, for the first time, the concept of “pastiche” as an autonomous limitation to copyright, clarifying its essential aspects and reinforcing artistic freedom in the use of existing works.
Last April 14, the Court of Justice of the European Union (CJEU) issued a judgment in the so-called “Pelham case” (C-590/23), which finally sheds some light on the scope of the pastiche exception.
In its judgment, the CJEU identifies the following elements as defining features of the concept of pastiche: (i) the use of protected elements from one or several earlier works, while being noticeably different to such works; (ii) the existence of a creative dialog with an earlier work; and (iii) the recognizability of the work as pastiche, thereby excluding concealed imitations of protected subject matter or plagiarism.
This artistic dialog that the CJEU chooses as the central aspect of the notion of pastiche can take several forms, such as, for example, an open imitation of the style of the earlier works, a tribute to them, or humorous or critical engagement with them. However, the CJEU is clear that no specific intention – whether humorous or otherwise – can be required in order to find that a work constitutes a pastiche.
The immediate conclusion that is drawn from the above definition is that the pastiche exception is conceived as an autonomous exception, distinct from its “sister” concepts of caricature and parody. As the CJEU points out, the fact that the three concepts share certain common elements does not mean that they should be treated as synonymous.
The conceptual debate in Spanish case law
The concepts ”caricature, parody, pastiche” had already appeared in the Infosoc Directive (Directive 2001/29/EC) – albeit as an optional exception for Member States – and were later introduced as mandatory exceptions by the so‑called Copyright Directive (Directive (EU) 2019/790).
In Spain a large part of case law held that these concepts should be treated as a form of overlap, such that all three exceptions would require the presence of a humorous or jocular element. The main arguments put forward in support of that view are summarized below:
- French tradition. The concepts “caricature, parody, pastiche” originate from the French copyright law of 1957, according to which once a work has been made public, the author may not prohibit parody, pastiche or caricature, “having regard to the laws of the genre”. French law and case law by the French courts provide support for the argument that “caricature, parody, pastiche” are not in actual fact different concepts, but rather essentially synonymous notions that refer to the same reality, albeit applied, where appropriate, to different types of works. Following this view, parody would operate in the field of music; pastiche in that of literary works; and caricature in the field of visual arts (Perdices Huetos, A. B. [2023]).
- Justification for the exception. It has also been argued that only the presence of this element of humor or mockery could justify the exception based on freedom of expression, as is the case with parody, since otherwise the interference with the author’s exclusive rights would be unacceptable.
- The absence of caricature as an exception in the Spanish Copyright Law Finally, it has been highlighted that the reason why caricature has not been incorporated into Spanish copyright law as an exception, is precisely because the definition of parody established by the CJEU in the Deckmyn case already includes caricature.
Contrary to those views, however, an examination of the criteria used by the CJEU itself in defining the parody exception in the Deckmyn case pointed in the opposite direction:
- Interpretation in accordance with the meaning of the term in everyday language. Looking at the term from a linguistic perspective reveals that humor is not an essential feature of pastiche. The Dictionary of the Spanish Royal Academy (DRAE) describes it as imitation or plagiarism based on taking characteristic elements of an artist’s work and combining them in such a way as to give the impression of being an independent creation. The Cambridge Dictionary defines pastiche as “a piece of art, music, literature, etc. that intentionally copies the style of someone else’s work or is intentionally in various styles, or the practice of making art in either of these ways”. The Dictionnaire de l’Académie française in turn defines pastiche as a “work or part of a work that imitates the manner or style of an artist or writer, as a form of play or with a parodic intent; the set of techniques used in this type of imitation.” The German Duden defines pastiche as the “imitation of an author’s style and ideas” and includes the term ‘pasticcio’ defined as “a pictorial work executed (in some cases with fraudulent intent) in the manner of a famous artist.” The essential features of pastiche have to do with imitation and the combination of characteristic elements of a work or a certain artistic style. Pastiche is also identified as a form of creation, which suggests that the presence of certain creative activity could also be a key element. By contrast, the reference to a parodic purpose only appears in the French definition and not as an intrinsic requirement but simply as a possibility.
- Aim of the law. The preamble of the Copyright Directive refers for the first time to freedom of expression alongside freedom of the arts when indicating the rights that need to be weighed against copyright to strike a fair balance. Including this reference to artistic freedom constitutes a novelty with respect to the preamble of the InfoSoc Directive, which only mentioned the right to freedom of expression. This reference is not incidental; rather, it appears to reflect a genuine intention on the part of the European lawmakers to broaden, to some extent, the scope for action by users, not just in order to express opinions or criticism, but also in the creation of new forms of artistic expression.
- Safeguarding the effectiveness of the exception and respecting its purpose. Equating pastiche to parody and imposing mockery as a requirement, would deprive it of any effectiveness and render it devoid of content.
The Pelham case: application of the Decknym criteria to pastiche
The Pelham case dates back to 1997 and arose following the recording of the song Nur mir, which contained a two-second fragment (a sample) of the soundtrack Metall auf Metall, published in 1977 and repeated it in a loop. The members of the band that had produced Metall auf Metall filed an action for infringement of their related rights as soundtrack producers, thereby triggering a long series of judicial decisions.
In those proceedings, which lasted for over twenty years, the German courts referred to the CJEU the question of whether that sampling was lawful as use for the purpose of pastiche.
Applying the criteria established in the Deckmyn judgment, the CJEU firstly examined the ordinary meaning of the term “pastiche” and concluded that it was not unambiguous and encompassed a wide range of meanings.
As a result, the CJEU held that, in this case, particular attention had to be paid to the context in which that term was used and to the objectives pursued by the Copyright Directive, namely to ensure a fair balance between, on the one hand, the interests of intellectual property right holders and, on the other, the protection of users’ freedom of expression and artistic freedom.
Finally, the CJEU underscored the importance of safeguarding the effectiveness of the exception. It held that by listing, on an equal footing, three distinct concepts, the EU lawmakers had intended to permit three categories of use which, although they might overlap in part, must nevertheless be interpreted in such a way as to ensure the effectiveness of each one of those exceptions. The CJEU expressly held that although pastiche may, like parody and caricature, constitute an expression of humor or mockery, it cannot be required for that necessarily to be the case, since such an interpretation would have the effect of conferring on that exception a scope that is identical to that of parody or caricature, thereby undermining its effectiveness.
Ángela López Cárcel
