The Court of Justice of the European Union (CJEU) has handed down a judgment providing important clarification on the meaning of ‘pastiche’ for the purposes of EU copyright law.

Given that ‘pastiche’ also appears in English law (in section 30A of the Copyright, Designs and Patents Act 1988), and that there is limited domestic authority on its meaning, the judgment is likely to serve as a helpful, albeit non-binding, guide for English courts in interpreting the term.

The case was the latest episode in the long-running saga involving the German electronic band Kraftwerk and rapper, singer and producer Moses Pelham. Kraftwerk have long argued that Pelham infringed their copyright by using a two-second sample from one of their tracks in a song he produced in 1997. Now decades old, the dispute has achieved the feat of being the longest-running copyright dispute in German history.

The dispute previously made its way to the CJEU in 2019, where it was held that even a very short sample of another’s musical work is to be regarded as a reproduction of that work (therefore requiring a licence), unless that sample was modified so as to be unrecognisable compared to the original work. Attempts by Pelham to rely on a German law that allowed for ‘free use’ were rebuffed on the grounds that this was too broad a concept and that copyright exceptions and limitations must be based on the exhaustive list provided in Article 5 of the 2001 InfoSoc Directive (the ‘Directive’). This includes, at Article 5(3)(k), the exception for the purposes of caricature, parody, or pastiche.

In June 2021, German copyright law was revised to incorporate the exception in Article 5(3)(k), which was subsequently invoked by Pelham to argue that the sample of Kraftwerk’s track was not infringing since it was for the purposes of “pastiche”.

After a series of proceedings in the German courts, the matter finally found its way to the CJEU, which was asked to give its guidance on the meaning of ‘pastiche’ for the purposes of the Directive.

The CJEU notes that ‘pastiche’ is a term rarely used in everyday language and not defined in the Directive. As such, its interpretation must be based on the context in which it occurs and the objectives pursued by Article 5(3)(k) of the Directive. That context includes the fact that ‘pastiche’ forms part of a list alongside ‘parody’ and ‘caricature’. In the view of the CJEU, this means that while they might share certain characteristics, they must each be interpreted as separate concepts.

Accordingly, the CJEU held that while pastiche may constitute an expression of humour or mockery, “it cannot be required for that necessarily to be the case, since such an interpretation of the concept of ‘pastiche’ would have the effect of conferring on that exception a scope that is identical to that of ‘parody’ or ‘caricature’, thereby undermining its effectiveness”.

Similarly, the Court held that the concept of pastiche “cannot be interpreted as covering every creation that evokes an existing work and is noticeably difference from it”, as this would render the concepts of parody and caricature redundant. Nor was the concept intended to have a ‘catch all nature’ covering every form of creative use of copyright-protected material.

Instead, bearing in mind the balance to be struck between the interests of rightsholders on the one hand, and the freedom of expression and artistic freedom of users of copyright-protected works on the other, and making clear that it “cannot cover concealed imitations of protected subject matter or plagiarism”, the CJEU offered the following view:

“[pastiche] does not have a catch-all nature but covers creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them”.

The Court also held that in order for a person to rely on the ‘pastiche’ exception, it was not necessary to establish they intended to use an existing work for that purpose. Rather, the question was an objective one, namely whether “the ‘pastiche’ nature must be recognisable for persons familiar with the existing work from which those elements have been borrowed”.

Having confirmed that, in principle, sampling can constitute ‘pastiche’ for the purposes of the Directive, it will now fall to the German Federal Court of Justice to rule on whether Pelham’s use of Kraftwerk’s sample falls within the exception.

To read the judgment in full, click here.