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What is a pastiche within the meaning of copyright law?

Pastiche Copyright ECJ Submission BGH

The term "pastiche" has taken on a new meaning with the EU Copyright Directive and the German copyright reform of 2021. In the context of creative uses such as memes, GIFs, remixes and sampling, the term is increasingly becoming the focus of legal debates. But what exactly is a pastiche? What criteria must be met for a work to be legally considered a pastiche? These questions are of great importance - not only for creatives, but also for platform operators and users. The European Court of Justice (ECJ) now has the chance to shed light on the matter and provide clarity.

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Pastiche: What does art say? What does the law say?

In the artistic sense, a pastiche is a work that consciously incorporates elements of another work - whether as homage, as a creative reinterpretation or as a stylistic borrowing. In music, literature, the visual arts and also in digital culture, pastiche is a recognized means of artistic expression. But as soon as protected works come into play, the question arises: How does copyright law define the term?

According to the explanatory memorandum to the German copyright reform, a pastiche is a work that "imitates another in an appreciative and artistic manner". At the same time, the works must be "perceptibly different". However, this definition offers room for interpretation and leaves many questions unanswered:

  • Does the pastiche have to have a positive intention?
  • Are humor, parody or homage mandatory components?
  • How does a pastiche differ from a parody or a quote?

This is where the current legal disputes come in, particularly in the context of the "metal on metal" proceedings.

The "metal on metal" proceedings: 20 years of legal debates

The "Metal on Metal" case is one of the best-known disputes in German copyright law. It centers on the question of whether and to what extent sampling - the use of short music sequences in new works - is permissible. Following several rulings at national and European level, the Federal Court of Justice (BGH) has once again referred the matter to the ECJ in order to obtain fundamental clarification. The central question is: Does sampling fall under the new limit of Section 51a of the German Copyright Act (UrhG), which implements the concept of "pastiche"?

In its ruling of September 14, 2023 (case no. I ZR 74/22), the BGH found that the previous definitions were inadequate. The ECJ's decision will have far-reaching consequences, not only for the music industry, but for digital culture as a whole.

What questions need to be clarified?

The BGH has referred several key questions to the ECJ concerning the interpretation of the term "pastiche":

  1. What does the term "pastiche" mean?
    Should pastiche apply as a general catch-all for creative disputes? This question is particularly relevant as the barrier is not only important for sampling, but also for other forms of use such as memes, GIFs and remixes.
  2. What are the requirements for a pastiche?
    Does a pastiche have to be an homage? Are imitation of style, humor or other specific characteristics necessary? Or is it sufficient that the work represents a recognizable transformation of the original work?
  3. What role does the user's intention play?
    Does the creator have to have the intention to create a pastiche or is it sufficient that the work is objectively recognizable as such? This question could be particularly important for automated content such as memes.
  4. Artistic freedom vs. copyright:
    The ECJ could also see the concept of pastiche as a means of better protecting artistic freedom. This would make the pastiche not just an exception, but a fundamental element of the balance between artistic freedom and the protection of intellectual property.

The importance for digital culture

Clarifying the term "pastiche" is of central importance for internet culture. Platforms such as YouTube, TikTok and Instagram are now an essential part of creative work. Users often draw on protected content to create new, transformative works. Without clear rules, there is a risk of "overblocking" - the excessive blocking of content by upload filters.

The legal barrier of pastiche is intended to ensure that such creative uses continue to be possible. A broad interpretation of the term could provide the necessary leeway to maintain a balance between the interests of authors and users.

Conclusion: A turning point in copyright law

The ECJ's ruling on the term "pastiche" could be a milestone in copyright law. It not only affects sampling in music, but also has the potential to fundamentally change the use of protected content in the digital space. A clear definition would finally create the legal certainty that creatives, platforms and users urgently need.

The ECJ will hear these questions from January 14, 2025. The results are eagerly awaited and could set the course for a new era in copyright law. We will keep you up to date with the latest developments.

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