Pelham II: ‘Parody’ as an all-encompassing term for ‘pastiche’ and ‘caricature’ too?

Pastiche Kat

Earlier today, The IPKat reported on the new referral to the Court of Justice of the European Union (CJEU) in the Pelham saga, this time concerning the notion of ‘pastiche’.

While waiting to see the actual questions referred to the CJEU, I thought that IPKat readers might be interested in this short preview from the second edition of Copyright and the Court of Justice of the European Union (Oxford University Press), which is going to be released on 5 October.

Any feedback is welcome!

‘Parody’ as an all-encompassing term for ‘pastiche’ and ‘caricature’ too?

The referral in Deckmyn and Vrijheidsfonds, C-201/13 concerned the notion of ‘parody’. In its judgment, the Court specifically focused on that. In his Opinion, however, Advocate General (AG) Cruz Villalón indicated that the notions of parody, caricature and pastiche ‘have the same effect of derogating from the copyright of the author of the original work which, in one way or another, is present in the – so to speak – derived work.’ Since ‘[i]t may be difficult in a specific case to assign a particular work to one concept or another when those concepts are not in competition with one another’, it does not appear ‘to be necessary to proceed any further with that distinction’.

‘Parody’ not the same as ‘pastiche’ or ‘caricature’

Based on this part of the Opinion, one might think that no distinction would need to be drawn between the different concepts referred to in Article 5(3)(k) of the InfoSoc Directive. Such a view, however, would be inappropriate also considering the different everyday meaning of the terms ‘parody’, ‘pastiche’ and ‘caricature’. 

More correctly, commentators have indicated that ‘pastiche is close to parody, since both signal that a borrowing has been made, but pastiche relies more on imitation whereas parody aims to adopt a critical stance towards the original work.’ (S Jacques, The Parody Exception in Copyright Law (OUP:2019), 11. For a discussion, see also T Kreutzer, The Pastiche in Copyright Law (Gesellschaft für Freiheitsrechte:2022), available at https://freiheitsrechte.org/uploads/documents/Englische-Dokumente/Democracy/Pastiche_in_Copyright_Till_Kreutzer_GFF_english.pdf, 14-23, and A Godioli – J Young, Humor and Free Speech: A Comparative Analysis of Global Case Law (June 2023), Columbia Global Freedom of Expression, Special Collection, available at https://zenodo.org/record/8105760, 26-27.)

In any event, the difference between ‘parody’, ‘caricature’ and ‘pastiche’ refers to a different field of application of these concepts, not also a broader scope for the relevant exception or limitation or even that ‘caricature’ and ‘pastiche’ are not also autonomous concepts of EU law (Cf A Metzger – M Senftleben (on behalf of the European Copyright Society), Comment of the European Copyright Society on Selected Aspects of Implementing Article 17 of the Directive on Copyright in the Digital Single Market into National Law (2020), available at https://europeancopyrightsocietydotorg.files.wordpress.com/2020/04/ecs-comment-article-17-cdsm.pdf, 13-14, suggesting instead that Member States would be entitled to have their own understandings of pastiche when transposing Article 17(7) of the DSM Directive into national law). This is also because all exceptions and limitations under Article 5 of the InfoSoc Directive are subject to the overarching limit set by the three-step test in Article 5(5). 

All this said, it is certain that – like ‘parody’ – ‘pastiche’ and ‘caricature’ are also autonomous concepts of EU law, with the result that they need to receive a uniform interpretation and application throughout the EU territory, consistently with the context in which Article 5(3)(k) is situated and the objectives pursued by the InfoSoc Directive.

Parody, caricature and pastiche as sub-sets of quotation

Instead of conflating the different notions referred to in Article 5(3)(k), a more appropriate way to intend ‘parody’, ‘caricature’ and ‘pastiche’ would be by reference to ‘quotation’ under Article 5(3)(d). It is clear that ‘parody’, ‘caricature’ and ‘pastiche’ are ways through which one’s own freedom of expression and information may be exercised by specifically entering into a ‘dialogue’ with an earlier work or protected subject-matter and/or the ideas conveyed therein.

Such an understanding is also reflected in a recent decision of the Italian Supreme Court [commented here]. In a dispute inter alia concerning the lawfulness of a parody of well-known character Zorro under Italian copyright, the Supreme Court held that a parody is a type of quotation for purposes of criticism or review, in accordance with Article 70(1) of the Italian Copyright Act. The right to criticize and review can be exercised in different ways, including by means of a parody. 

Article 5(3)(k) of the InfoSoc Directive would be consistent with this interpretation, and the judgment in Deckmyn and Vrijheidsfonds, C-201/13 would demonstrate that. The fair balance mandate that the CJEU referred to is the limitation which the parodic exploitation of a third-party work or character is subject to, also considering that the CJEU has repeatedly held that the protection of IP under Article 17(2) of the EU Charter  is not absolute. The three-step test would be also part of such a mandate: the circumstance that a parody is made for profit does not rule out the very applicability of Article 70(1) of the Italian Act: what matters is not that circumstance, but rather whether the alleged parody unduly conflicts with the normal exploitation of the earlier work.

If the approach indicated by the Italian Supreme Court was to be seen from an international law perspective, then an argument could plausibly be made that sub-sets of ‘quotation’ like ‘parody’, ‘caricature’ and ‘pastiche’ are also mandatory exceptions under Article 10(1) of the Berne Convention (The conclusion of the Italian Supreme Court is not dissimilar in substance from the position persuasively advanced in T Aplin – L Bently, Global Mandatory Fair Use (CUP:2020), 114-125. But cf the thought-provoking points made in A Hui – F Dohl, ‘Collateral damage: reuse in the arts and the new role of quotation provisions in countries with free use provisions after the ECJ’s Pelham, Funke Medien and Spiegel Online judgments’ (2021) 52(7) IIC 852, 883-885.)

In addition, by regarding the ‘fair balance’ mandate as a general principle of EU law, the Italian Supreme Court identified a trend towards a greater visibility of the EU Charter and its Article 52, as well as an understanding of the general EU principle of proportionality as also entailing a fair balance mandate. 

Furthermore, in line with more recent CJEU case law (Pelham, C-476/17, para 62; Spiegel Online, C-516/17, para 46; Funke Medien, C-469/17, para 61), the three-step test itself contributes to the fair balance between exclusive rights and exceptions and limitations, including having regard to the guarantee of effectiveness of the latter and compliance with the EU Charter rights and interests.