ABSTRACT
With the return of the ‘Metal on 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 authorization. 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 the 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. Pursuant to the first ruling, Germany, where the case originates, 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. Pursuant to 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 meaning of pastiche before comparing the development of the notion in Italian, French and some other EU Member States’ copyright law. Since the non-legal as well as the different national legal understandings of pastiche do not crystallize a common understating of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU has 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 must not contain elements of humor or mockery, as a distinction to parody – but which use must be of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interest of the rightholder and the user in a given case.
Mezei, Péter and Jütte, Bernd Justin and Sganga, Caterina and Pascault, Léo, Oops, I Sampled Again … The Meaning of ‘Pastiche’ as an Autonomous Concept under EU Copyright Law (April 29, 2024), 55(8) IIC – International Review of Intellectual Property and Competition Law, 2024 (forthcoming).
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