By Dr Despoina Farmaki
Long overlooked and often misunderstood, the notion of “pastiche” has now taken centre stage in European copyright discourse. Following a new referral in Pelham II (C-590/23) and the recent Opinion of Advocate General Emiliou, the CJEU is being asked to clarify what qualifies as a pastiche under Article 5(3)(k) of the InfoSoc Directive. At stake is the delicate balance between copyright protection and artistic freedom in an age of sampling, remixing, and cultural quotation.
Once considered a minor sibling to “parody” and “caricature”, the pastiche exception under Article 5(3)(k) of the InfoSoc Directive has historically received inadequate attention (see, however, the relatively recent Only Fools UK case). This is despite its textual presence in both that Directive and the newer Article 17(7) of theDSM Directive, which makes implementation of this exception mandatory for EU Member States.
This neglect may in part stem from the influential Opinion of AG Cruz Villalón in Deckmyn, who treated parody, caricature and pastiche as interchangeable. While the CJEU clarified the meaning of parody in that case, it left pastiche in the shadows. That began to change with AG Szpunar’s Opinion in Pelham I, which tentatively explored the concept in the context of unlicensed sampling.
The German Federal Court of Justice, after Pelham I, referred fresh questions to the CJEU, asking whether “pastiche” is a broad catch-all for artistic reuse, or whether it requires limiting criteria. It also queried whether recognisability and intent are necessary for a use to qualify as pastiche.
