CJEU delivers pastiche-style judgment on … pastiche

Moses Pelham

Today, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its judgment in Pelham II, C-590/23, concerning the notion of pastiche in Article 5(3)(k) of the InfoSoc Directive.

To understand the genesis of the referral, reference must be made to the Opinions of two Advocates General (AGs): AG Cruz Villalón in Deckmyn and AG Szpunar in Pelham I. The former considered that no distinction needs to be drawn between the various notions referred to in Article 5(3)(k) of the InfoSoc Directive; the latter suggested that the situation at issue in the background national proceedings (unlicensed sampling of musical content) might not qualify for the application of the quotation defence in Article 5(3)(d) of the InfoSoc Directive, but might be nevertheless potentially eligible for the application of the pastiche exception.

With its second referral in the long-running dispute in Pelham, Germany’s Federal Court of Justice (BGH) asked the CJEU to tackle the notion of pastiche, this being a defence that – just a few years ago – very few people would have noticed let alone considered invoking. Things have changed: pending the second Pelham referral, some considered (and recommended considering) pastiche a potentially very broad defence, which would cover nearly every ‘creative’ re-use of copyright works and other protected subject-matter.

Unsurprisingly, this is not the case.

AG Opinion

In his Opinion in Pelham II, which significantly exceeds the scope of the referred questions [IPKat here], AG Emiliou noted at the outset the ‘crucial’ importance of the referral, owing to the consideration that ‘[i]n all fields of the arts, artists have been borrowing, to various degrees, and more or less overtly, from past creations since the dawn of time’ and that this, in turn, would require ‘’marrying’ the system introduced by the InfoSoc Directive with the freedom of the arts guaranteed by Article 13 of the Charter’.

Insofar as the notion of pastiche is concerned, the AG correctly considered it an autonomous concept of EU law, which must be understood in accordance with its everyday meaning and in light of its surrounding context. He thus proposed the CJEU to reject any idea of catch-all terms – including having regard to pastiche – and define it as follows:

[A]n artistic creation which (i) evokes an existing work, by adopting its distinctive ‘aesthetic language’ while (ii) being noticeably different from the source imitated, and (iii) is intended to be recognised as an imitation. The purpose pursued with that overt stylistic imitation is irrelevant.

Crucially, the AG referred to ‘stylistic imitation’ in his proposed definition of pastiche, having noted that not necessarily and not invariably styles are unprotected ideas. When someone ‘imitates closely the style of a single work’, ‘[t]he elements borrowed, while ‘stylistic’, could still be regarded as original, especially when combined.’

Today’s judgment

In today’s judgment, the Grand Chamber substantially agreed with AG Emiliou and, before him, AG Szpunar who, in Pelham I, had indicated that ‘[t]hat exception, like the quotation exception, presupposes interaction with the work used, or at least with its author’.

In other words: a lawful pastiche is one that is justified by the purpose – which must be objectively identifiable, i.e. without having to investigate the pasticher’s actual state of mind or intention – of entering into a dialogue with an earlier work/protected subject-matter or an author and their ideas.

The Court clarified that, while overlaps between the concepts of ‘pastiche’, ‘parody’ and ‘caricature’ are unavoidable – including the requirement of a noticeable difference between the alleged pastiche and the original work –, they remain distinct.

Also, although ‘nothing […] indicates that the exception for ‘pastiche’ was designed by the EU legislature to have a catch-all nature covering every form of creative use of copyright-protected material’, the exception must be construed in such a way that the ‘rights’ of users to freedom of expression (including artistic expression) are fairly balanced vis-à-vis IP protection. An interpretation of pastiche that encompassed ‘concealed imitations of protected subject matter or plagiarism’ would fail to comply with the fair balance mandate.

As to style imitation, the Court did not say anything specific, but noted that the exception only applies to protected elements of a work or subject-matter.

Preparing the house specialty:
a nice pasticcio

Finally, the Court rejected any relevance of the pasticher’s subjective intention: what matters is whether ‘a person who is familiar with that existing work and who has the requisite intellectual understanding’ recognizes the use in question as a pastiche.

Comment

The first thing to note is that the judgment contains several sentences and paragraphs that, taken in isolation, could lend their side to significantly diverse interpretations … and uses. 

In this sense, the judgment itself may be regarded as a form of pastiche (or, less elegantly, a patchwork) of different standards employed by the CJEU in its case law on exceptions and limitations over time: autonomous concepts of EU law, effectiveness, fair balance, interpretation in light of the EU Charter, references to exceptions as ‘user rights’. 

In sum: those looking for convenient statements to add to their pleadings and briefs will find a treasure trove of citations in today’s judgment.

On a more serious note, there is something that the CJEU did not consider explicitly: the three-step test. Nevertheless, by disallowing an interpretation of pastiche as entitling one to engage in any form of (more or less) creative reuse, and by indicating the need for an objective justification for the use in question, the Court implicitly noted the boundaries of the concept and, thus, the scope of the resulting defence.

Finally, the judgment might be also helpful in elucidating the (puzzling) recognizability standard embraced in Pelham I and, more recently, in Mio/konektra [IPKat here, but see here]: by referring to the ‘person who is familiar with that existing work and who has the requisite intellectual understanding’, the CJEU appeared to create an entirely new fictional character, which will perhaps join the ranks of the other IP personae – the average consumer, the person skilled in the art, and the informed user. Time will tell – perhaps.