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.
In a bold and wide-ranging Opinion, AG Emiliou tackles these questions head-on, while also engaging in a broader critique of the EU’s copyright framework. He places the debate within a long history of artistic borrowing and emphasises the need to reconcile the InfoSoc Directive with Article 13 of the Charter of Fundamental Rights, which protects artistic freedom.
AG Emiliou proposes a tripartite definition of pastiche, including:
An 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.
Importantly, the AG distinguishes pastiche from both parody (which requires a humorous or critical intention) and simple imitation (which may lack artistic transformation). He also stresses that pastiche must not become a “catch-all” for any derivative work, lest it undermine the balance of rights established in EU law.
While the underlying litigation involves phonogram producers’ rights—rather than authors’ rights per se—AG Emiliou does not shy away from critiquing the broader system. He takes issue with the Pelham I judgment’s expansive interpretation of producers’ rights, arguing that it has tipped the scales too far against artistic reuse.
He calls for a “breathing space” for derivative creativity, possibly via a new, dedicated exception for artistic reuse or even a system of compulsory licensing. The AG ultimately proposed [in para 132] that the EU legislature introduces:
‘Providing an exception dedicated to artistic reuse of protected material (such as the ‘free use’ clause in German law), allowing a concrete, case-by-case balancing of the rights and interests of the parties, would help in that regard. It would support highly creative and, thus, socially valuable cases of artistic reuse (while keeping uninspired copying at bay). A system of framed, compulsory licences or statutory remuneration (184) could also be envisioned to support the creators of yesterday in certain cases. Such a flexible, open-ended exception would also ensure that the literary and artistic property system adapts, in a timely manner, to current and future social and technological changes. From an economic point of view, the fact that many countries worldwide have adopted such a clause should mitigate the concerns that it would ‘destroy’ the European Union’s cultural industries. (185) In any case, it would be for the legislature to introduce such mechanisms’.
While the AG’s proposed definition is thoughtful, the latter sections of the Opinion stray into legislative territory. His remarks about systemic reform, statutory licensing and Charter compatibility raise valid policy concerns, but arguably exceed the scope of what a judicial Opinion should address. It remains to be seen whether the CJEU will embrace such a proactive interpretation or limit itself to a narrower, more conservative reading.
The Opinion in Pelham II is significant not only for how it clarifies the legal contours of pastiche, but also for how it situates the exception within broader debates about artistic freedom and digital creativity. It rightly cautions against turning pastiche into a loophole, while also recognising its potential as a legitimate and historically grounded form of expression.
Whether the CJEU will follow the AG’s lead—or chart its own course—remains to be seen. What is clear is that pastiche, long a marginal concept in EU copyright law, is now at the heart of it.
Leave a Reply