Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.