ECS’s Opinion on Pelham II and its potential implications for AI-generated pastiches – Part 2

Last week this Kat started evaluating the Opinion of the European Copyright Society (ECS) concerning Pelham II [IPKat here]. In the first part, readers were briefly reminded of the prosecution history of the famous Pelham saga, and the four options – set by the ECS – that the Court of Justice of the EU (CJEU) seems to have in deciding how to approach to pastiche vis-à-vis parody were listed and commented on. Agreeing with inter alia the ECS, this Kat found that by listing three different artistic practices in Article 5(3)(k) Directive 2001/29/EC (InfoSoc), rather than using synonymous words which all refer to the same practice of imitating certain elements of works, the EU legislature clearly wanted parody, pastiche, and caricature to be treated distinctly, and accordingly, be subject to distinct legal requirements.

An ImpressionistKat enjoying the sunset

Where were we?

Part 1 of this commentary concluded with a promise to delve deeper into the features that pastiche works should exhibit, as per the ECS. So, here are the characteristics that the ECS thinks should define the concept of pastiche, accompanied by this Kat’s mrrrvelous comments:

“[P]astiche cannot be intended as a mere imitation of an artistic style”

Although many artistic and dictionary definitions of pastiche describe it as the imitation of style or stylistic elements of a work or its author, the so-called idea/expression dichotomy seems to suggest that the legal meaning of pastiche cannot be intended to solely permit the unauthorised reproduction of style, as style is not protected by copyright law in the first place. Thus, it is generally claimed that one does not need an exception, nor a licence, to copy the style of a certain work.

This idea/expression dichotomy, arguably the most famous rule of copyright law, can be considered as the necessary evil to distinguish the protectable subject matter (i.e., the expression of an idea) and the unprotected elements that need to remain in the public domain (i.e., the idea). However, it may not always be possible to categorize “style” under “idea” (for a discussion on this dichotomy actually being a spectrum see the webinar by Eleonora Rosati, “Infringing AI: Liability for AI-generated outputs under EU/UK copyright law”).

And now a CubicKat...

For instance, if it is possible to express an idea of painting a sunset scenery on canvas in numerous styles (e.g., in an impressionist style or a cubic style), then it might be possible to argue that some unique styles are original expressions of a public domain-idea, and therefore, can be protected by copyright – on the condition that they also satisfy the fixation, or sufficient precision requirements. It follows that, in some cases an exception which specifically allows for the unauthorised imitation of a copyrighted style or stylistic element of a certain work may be necessary to avoid unnecessarily limiting the freedom of the arts, and even to ensure the development of artistic styles by applying them in different contexts or to express different ideas.

This Kat, therefore, believes that pastiche may be an exception that allows for the unauthorised imitation of certain artistic styles that qualify as original expressions. The recent trend, adopted by the art community, of bringing copyright infringement claims against AI companies due to imitating or mimicking the artistic styles of the training data, and raising fair use (e.g., Andersen v. Stability AI) or pastiche (e.g., Getty Images v Stability AI – currently pending before the High Court in London) defences against these claims can further support this argument. If style is perceived as something that cannot be protected by copyright law, then artists would not have claimed infringement simply due to the imitation of their style by AI-generated outputs. Likewise, if style cannot be protected by copyright, then AI companies would have probably claimed that there was not an infringement in the first place due to copying an unprotected element of those works, instead of seeking the assistance of an exception to deny liability for the infringement and get off the hook.

“[P]astiche should not require an explicit interaction with the original work” and “[T]he expression resulting from the exercise of the pastiche exception need not itself be an original work”

These two features of pastiche, suggested by the ECS, are unequivocally in accordance with the foundational principles established by Deckmyn. As mentioned in Part 1, when the statutory context is considered, it would undermine legal certainty and consistency to allow the parodist to “freely depart from the [underlying] work” while requiring the pasticheur to ensure “an explicit dialogue with it”. Similarly, it would be bizarre to require pasticheurs to produce original works, while “displaying noticeable differences” from the underlying work suffices for parody.

“[T]he presence of humour or mockery cannot be a necessary requirement”

As demonstrated in Part 1, by preferring the fourth option, the ECS states that pastiche, a distinct artistic expression, should not be expected to qualify the same legal requirements as parody. If parody and pastiche are accepted to be different artistic practices, then it would not be meaningful to require pastiche to be humorous or mocking as those will be within the scope of parody – a distinct artistic practice.

“The intention of the user to create pastiche plays no role”

According to the ECS, the intention of the pasticheur should not matter for the output to benefit from the pastiche exception. It is argued that the important factor affecting the availability of the pastiche exception is whether a viewer, familiar with the underlying copyright work, can recognise the output as a pastiche – as suggested by the German Federal Court of Justice (BGH). Therefore, the ECS supports that “[e]ven accidental pastiches [should be] covered by the exception”.

In the Opinion, the ECS justifies this stance by arguing that “[Intention] is not required for parodies – and, presumably, for caricatures – and should not be required for pastiches either”. However, from the AG Opinion and the CJEU ruling in Deckmyn, it can be inferred that, a “humorous intent” on the part of the parodist is a necessary criterion to benefit from the parody exception (Eleonora Rosati, “Just a laughing matter? Why the decision in Deckmyn is broader than parody” (2015) 52 Common Market Law Review 511). Moreover, the intention to produce a parody – by aiming to “create a distance from the work which it borrows” – is one of the elements differentiating acceptable unauthorised uses from infringing or plagiaristic reproductions (Sabine Jacques, The Parody Exception in Copyright Law (OUP 2019)). Thus, intention, be it a humorous one or one that demonstrates the difference between the purposes of a parodist and a copycat, plays a role in deciding whether a mocking imitation constitutes an infringing use.

Despite this background, it is not immediately clear that the intention factor is one of the foundational principles set by Deckmyn, that should be applied to all the exceptions under Article 5(3)(k) InfoSoc. Rather, the relevance of intention ought to depend on the nature and inherent characteristics of each artistic expression listed under this provision. Consequently, the CJEU can still conclude that, intention is not a necessary criterion to qualify as pastiche, albeit on grounds different from those proposed by the ECS. However, in such a case, broader considerations, particularly regarding the lawfulness of AI-generated outputs, would need to be taken into account.

If pastiche is found not to require any specific intention on the part of the pasticheur or a conscious imitation of a stylistic element of a certain work, generative AI tools – which currently lack consciousness or intent – could easily meet all the requirements set by the ECS for the pastiche exception. This would leave the three-step test as the primary, if not the sole, barrier to AI-generated outputs from being deemed lawful pastiches. While this does not need to have a determining effect on the definition of pastiche, it is an issue that should be carefully considered and at least partially addressed before a definition is formulated.

Finally, compliance with Article 5(5) InfoSoc

InfoSoc necessitates that all the exceptions it lists satisfy the three-step test. Therefore, in addition to reflecting the legal definition of pastiche, the exception should (i) apply only in certain special cases, (ii) not conflict with a normal exploitation of the work, and (iii) not impose unreasonable prejudice to legitimate interests of right holders. The ECS provides a comprehensive discussion on the three-step test, exploring the potential impacts of each condition, and concludes that the use of the two-second sample from Metall auf Metall in Nur Mir meets all the three conditions, thereby confirming the lawfulness of Pelham’s pastiche.

Concluding Remarks

In this Kat’s view, the ECS did not only provide a through definition for pastiche, but also reiterated the relevance and importance of the three-step test under Article 5(5) InfoSoc in the construction and application of exceptions. Although it may be possible to suggest that pastiche should not be limited to the imitation of artistic styles and that the intention of the pasticheur should not play a decisive role in deciding the applicability of the pastiche exception, when considering the broader implications of these suggestions, especially in the context of AI-generated outputs, their appropriateness can be questioned.

In some cases, artistic styles can surpass the threshold of expression, making them eligible for copyright protection as part of a work. When a specific style is not exempt from copyright protection, it would be illogical to argue that pastiche is not intended to allow the imitation of style. It follows that in some circumstances, the existence of an exception specifically addressing the unauthorised reproduction of artistic styles might turn out to be necessary. Including when AI-generated works are considered, it is important to adopt a case-by-case approach to decide whether the style copied from a specific copyright work – which was used in the training data of an AI tool – can be considered as an original expression and if so, whether other features of pastiche as well as the three-step test are satisfied.

This approach seems more promising than simply asserting that style is not protected by copyright law. In some cases, this flexible approach would allow the reproduction of an artistic style irrespective of the applicability of the pastiche exception (since style may sometimes merely constitute an idea), while in some others the imitation of an artistic style might be infringing where style is protected by copyright and the unauthorised use does not meet all the requirements of the pastiche exception. With this approach it will be possible to find lawful pastiches generated by AI tools, only in certain special cases.

Finally, if the EU is not yet ready to accept the legitimacy of all AI-generated content, both the Advocate General (AG) Opinion and the CJEU ruling should address in detail whether the intention of the pasticheur should play a role in determining the lawfulness of a pastiche. In Brompton Bicycle, AG Campos Sánchez-Bordona clearly stated that intention is “not, in principle, relevant” in deciding whether unauthorised parties infringed the copyright of authors; but only accepted it as a factor that courts are “entitled to explore” while assessing the copyrightability of a work [Case C-833/18 AG Opinion, paras 89, 92]. The potential impact of intention in copyright law is further questioned by Mio and Others, but only in relation to authors’ intents in creating their works as it merely asks about the “actual choices that [authors] made in the creation of the subject matter” [Case C-580/23, question 1]. Thus, beyond defining a dormant exception, Pelham II, together with Mio and Others, appear to offer the CJEU another opportunity to revisit the role of intention – not only in the context of a particular exception, but also in relation to its broader relevance to the creation and unauthorised uses of copyrighted works – and resolve the ambiguity created by AG Sánchez-Bordona’s and Deckmyn’s differing approaches towards the impact of intention on unauthorised uses of copyright-protected works.

To intend, or not to intend, that is the
pastiche question for this Kat

If the AG’s stance in Brompton Bicycle is adopted by the CJEU in Pelham II, then it would conclude that, the intention of an unauthorised party to create a pastiche work does not play a role in deciding the lawfulness of that work. This absence of an intention requirement could pave the way for almost all AI-generated outputs to benefit from the pastiche exception, potentially unjustifiably expanding third parties’ freedom of the arts at the expense of authors’ rights. Thus, to maintain the fair balance between the rights and interests of third parties and that of authors, the CJEU should, in addition to emphasising the significance of compliance with Article 5(5) InfoSoc and adopting a case-by-case approach to the copyrightability of a specific artistic style, critically evaluate whether intention plays a decisive role in legitimising a pastiche work, particularly in light of the absence of intention in AI tools.

Image credits: ChatGPT and Söğüt Atilla