AG Emiliou advises CJEU on pastiche (while adopting very critical stance on EU copyright system as a whole and past CJEU case law too)

What does 'pastiche' mean? A question like this, raised a few years ago, would probably have sounded esoteric - if not plainly weird - to most. Yet, it is now at the centre of one of the most important recent referrals to the Court of Justice of the European Union (CJEU): Pelham II, C-590/23 [IPKat here, here, here, here, here].

Nested between the notions of ‘parody’ (interpreted by the CJEU in Deckmyn: IPKat here) and ‘caricature’, Article 5(3)(k) of the InfoSoc Directive permits EU Member States to introduce an exception to the exclusive rights harmonized there to allow the realization of a ‘pastiche’ of someone’s copyright work or protected subject-matter without the need of authorization. In turn, Article 17(7) of the DSM Directive requires Member States to, inter alia, allow pastiche in relation to what falls within the scope of that provision.

Admittedly, the notion of ‘pastiche’ has been overlooked for a long time, and the number of national cases in which this exception has been litigated is very limited. A recent example is nevertheless the UK Only Fools case [IPKat here].

One likely reason for such a limited focus is probably due to the position that Advocate General (AG) Cruz Villalón adopted in his Opinion in Deckmyn. There, for no apparent reason given that the referral concerned the notion of ‘parody’, the AG stated 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”.

Things – at least at the CJEU level – appeared to change when AG Szpunar issued his Opinion in Pelham I [IPKat here]. There, he suggested that the exception for ‘pastiche’ might be applicable to unlicensed sampling of a phonogram, though he also seemed unconvinced that it might be actually the case in the background proceedings at hand. In any event, he also warned that “That exception, like the quotation exception, presupposes interaction with the work used, or at least with its author”.

Surely, the adoption of Article 17 of the DSM Directive and the flurry of commentaries it generated has led to a renewed attention towards pastiche, also because some have opined that this would entail a very broad concept and, in turn, a broad exception. Above all, as stated, unlike Article 5(3)(k) of the InfoSoc Directive, Article 17(7) is mandatory for Member States to transpose into their own laws.

Against this background, after the CJEU handed down its Pelham I judgment, the referring court (Germany's Federal Court of Justice) deemed it appropriate to make yet another referral to the CJEU (as if the case had not been litigated at all levels in Germany and the CJEU for way too long already …), asking this time about the notion of pastiche, specifically:

• Whether pastiche is “a catch-all clause at least for artistic engagement with a pre-existing work or other object of reference” (it is the fault of some academic commentators to suggest that) or has “limiting criteria”, and
• How pastiche is to be assessed: does it require an intention on the side of the user or is there a need for recognizability of a use as pastiche?

Yesterday, AG Emiliou issued his long-awaited Opinion, noting at the outset the “crucial” importance of the referral, which lies in (1) the basic fact 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 (2) the fact that it requires “‘marrying’ the system introduced by the InfoSoc Directive with the freedom of the arts guaranteed by Article 13 of the Charter”.

The AG Opinion

The Opinion consists of 3 parts: (A) how the InfoSoc Directive limits unauthorized artistic reuses of protected material; (B) the concept of pastiche; and (C) the compatibility between the system of the InfoSoc Directive and the Charter.

(A) How the InfoSoc Directive limits unauthorized artistic reuses of protected material

The AG noted that copyright is rooted within an incentive-based rationale, as it serves to foster the freedom of the arts. Then, the AG made a point regarding who is protected by copyright: in his view, it’s the “creators of yesterday”, not “the creators of tomorrow”. Yet, copyright also comes with internal limitations (e.g., it is possible to copy someone’s mere ideas, as well as non-original expressions). All this is, in principle, fair enough, though the Pelham litigation does not really concern copyright, but rather the phonogram producer’s related right, which the CJEU already addressed in Pelham I (more on that, sub (C) below).

Then, the AG noted the “‘breathing space’ for ‘derivative’ expressions” provided by Article 5 of the InfoSoc Directive, which is not only an optional but also exhaustive catalogue

(B) Pastiche

Turning to the core of the Opinion (and arguably the only things the referring court asked ...), the AG moved from the premise that the notion of pastiche is also an autonomous concept of EU law, which must be understood in accordance with its everyday meaning and in light of its surrounding context. Having reviewed the parties’ and interveners’ observations, the AG concluded that the correct position would be mostly – though not entirely – the one advanced by Kraftwerk.

The Opinion does provide several references to different examples of pastiche in various artistic fields. What is key to lawyers is nevertheless the following twofold point:

• Although styles in general might be unprotected due to falling on the idea side of the idea/expression dichotomy, that is not the case when someone “imitates closely the style of a single work. The elements borrowed, while ‘stylistic’, could still be regarded as original, especially when combined.”
• Pastiche is not a catch-all term that applies to all derivative expressions, also because opining this way would unsettle the fair balance established by the EU legislature.

In sum, this is the definition of pastiche that the AG proposed the CJEU to adopt:

(C) InfoSoc Directive vs freedom of the arts

Following a discussion of the exceptions for quotation and parody, the AG turned to the final part of his analysis. There, the AG advanced several, very critical remarks, including the following: “With respect to the related rights granted to producers of phonograms, films and broadcasts, as interpreted by the Court, that balance is manifestly wrong. By contrast, with respect to the copyright granted to authors, that balance is, generally speaking, in compliance with Article 52(1) of the Charter. Nevertheless, a certain evolution could be desirable de lege ferenda.”

Notably, the Opinion is extremely unimpressed with the approach that the CJEU adopted in Pelham I regarding the construction of the right of reproduction of phonogram producers.

The AG ultimately proposed that the EU legislature introduces

Comment

Speaking of styles, the Opinion adopts one that is very different from the style employed by other AGs, including those who have criticized past CJEU decisions. The most important feature of this 'style' is the circumstance that AG Emiliou does not limit himself to answering the referred questions, but engages in discussions that exceed the referral and, admittedly, the competence of the CJEU in these types of action. The last part of the Opinion, in particular, is something that – irrespective of whether one agrees or not with the criticisms laid down there – appears questionable to discuss at the CJEU level. It is not only for the EU legislature to decide whether to reform the EU legal system, but – based on the referred questions – it is unclear why there was even a need to discuss the compatibility of the InfoSoc Directive with the Charter in the first place.

While I suspect that the resulting CJEU judgment will not touch upon many – if not most – of the issues raised in the Opinion, the proposed definition of pastiche seems to be appropriate and mostly in line with the points that the Court itself has made in case law on exceptions under Article 5 of the InfoSoc Directive.

AG Emiliou is also right to reject the idea of pastiche as a catch-all concept.

A more substantial engagement with the three-step test in Article 5(5) would have been appropriate and, hopefully, the CJEU will undertake this task when it delivers the judgment. Let's now wait and see ...

[Originally published on The IPKat on 18 June 2025]