Provisional text

delivered on 17 June 2025 (1)

Case C‑590/23

CG,

YN

Pelham GmbH,

SD,

UP

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

( Reference for a preliminary ruling – Copyright and related rights – Information society – Directive 2001/29/EC – Article 2 – Reproduction rights – Scope – Parts of works – Parts of phonograms – Sampling – Exceptions and limitations – Article 5(3)(k) – Use for the purpose of pastiche – Scope – Fundamental rights – Charter of Fundamental Rights of the European Union – Article 13 – Freedom of the arts )

I.Introduction

1.The present reference for a preliminary ruling is the second one made by the Bundesgerichtshof (Federal Court of Justice, Germany) (‘the BGH’) in the context of the 20-odd year dispute between the members of the electronic band Kraftwerk, on the one hand, and the hip hop producers SD and UP as well as the production company Pelham GmbH, on the other. It concerns the use, in a hip hop song (‘Nur mir’) released in 1997 by the latter, of a two-second extract (‘sample’)(2) that they ‘borrowed’ without authorisation from the phonogram (3) of an avant-garde electronic song (‘Metall auf Metall’) produced by Kraftwerk in 1977.

2.In its judgment in Pelham I, (4) in response to the first reference by the BGH in that dispute, the Court ruled that the use of such ‘samples’ of existing phonograms in new songs falls, in principle, within the exclusive reproduction right granted to the producers of those phonograms, under Article 2(c) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (5) (‘the InfoSoc Directive’). Thus, as a rule, a third party cannot do so without the authorisation of the producer concerned, otherwise it infringes the exclusive right in question.

3.In this new reference, the BGH asks the Court whether ‘sampling’ could nevertheless be regarded as freely permitted under one of the exceptions laid down in Article 5 of the InfoSoc Directive, namely ‘use for the purpose of … pastiche’ (paragraph 3(k)). In that respect, the BGH wonders, more generally, whether that exception (which is not defined by that directive, and which the Court has, so far, never explored) allows third parties to ‘borrow’ freely from existing protected material (such as phonograms) to create new artworks (such as new musical works), in the light of the freedom of the arts provided for by Article 13 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

4.That question is of a transversal nature. In all fields of the arts, artists have been borrowing, to various degrees, and more or less overtly, from past creations since the dawn of time. It is also a crucial one. Indeed, the precise limits that literary and artistic property imposes (or may validly impose, in the light of the freedom of the arts) on that process is the subject of frequent debate and litigation before courts throughout the world. In the past 20 years or so, the emergence of ‘Web 2.0’ and ‘Web 3.0’ services has shed new light on that issue, as online platforms such as YouTube or TikTok allow millions of users to engage with existing audio-visual material and reuse it to create and share their own content (‘user-generated content’ or ‘UGC’). In that regard, the present case is also important for the interpretation of the (still recent) Article 17(7)(b) of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (6) (‘the CDSM Directive’), which freely permits UGC created as a ‘pastiche’. (7)

5.While entrusting the answer to the wisdom of the Court, the referring court posits that it may be necessary, in the light of those artistic expressions and of the fundamental freedom of the arts guaranteed by Article 13 of the Charter, to interpret the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive as covering those various examples of artistic reuse of protected material, because the other principles, limitations and exceptions which curtail the scope of the exclusive rights granted to authors and other right holders would not, with respect to such reuse, leave sufficient ‘breathing space’ to satisfy the requirements of that freedom. Thus, beyond clarifications on the concept of ‘pastiche’, the present reference requires from the Court nothing less than an assessment of whether EU literary and artistic property, from a systematic point of view, is compatible with Article 13 of the Charter.

II.Legal framework

A.European Union law

6.Under the heading ‘Reproduction right’, Article 2 of the InfoSoc Directive provides:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;

…

(c) for phonogram producers, of their phonograms;

…

7.Article 5 of that directive, entitled ‘Exceptions and limitations’, states:

‘…

3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

…

(k) use for the purpose of caricature, parody or pastiche;

…

B.German law

8.Paragraph 51a of the Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and related rights; ‘the UrhG’), in its version applicable since 7 June 2021, provides that ‘the reproduction, distribution and communication to the public of a published work shall be authorised for the purposes of caricature, parody or pastiche. The option referred to in the first sentence covers the use of an image or other reproduction of the work used, even if that image or other reproduction is itself protected by a copyright or related right.’

III.Facts, national proceedings and the questions referred

9.In 1977, the band Kraftwerk (composed of CG and RL, now deceased; together, ‘the members of Kraftwerk’) published a phonogram featuring the musical work ‘Metall auf Metall’. Subsequently, SD and UP composed the musical work ‘Nur mir’, which was released on phonograms recorded by Pelham GmbH in 1997.

10.The members of Kraftwerk contended that SD and UP electronically copied (‘sampled’), without their consent, an approximately two-second long extract, which embodies a rhythm sequence, from the phonogram of ‘Metall auf Metall’ and used that extract as a continuous loop in ‘Nur mir’. By doing so, SD, UP and Pelham GmbH (together, ‘Pelham and Others’) infringed the copyright-related right of reproduction that the members of Kraftwerk, as producers of the phonogram of ‘Metall auf Metall’, enjoy over that phonogram. In the alternative, the members of Kraftwerk claimed that their copyright-related right of performers and CG’s copyright in the musical work ‘Metall auf Metall’ were infringed. In the further alternative, they claimed that the defendants in the main proceedings infringed the rules on unfair competition prohibiting economic free riding.

11.On those grounds, in 2004, the members of Kraftwerk brought an action against Pelham and Others before the Landgericht Hamburg (Regional Court, Hamburg, Germany) seeking various remedies, including a prohibitory injunction (requiring Pelham and Others to refrain from manufacturing, marketing (and so on) phonograms featuring ‘Nur mir’) as well as damages.

12.Over the following years, several decisions were delivered by various German courts at different levels of jurisdiction. In particular, by a decision of 13 December 2012, the BGH ruled in favour of the members of Kraftwerk. However, by a decision of 31 May 2016, upon extraordinary appeal by Pelham and Others, the Bundesverfassungsgericht (Federal Constitutional Court, Germany) (‘the BVerfG’) overturned that ruling. In essence, the BVerfG considered that the freedom of the arts, as guaranteed under the German constitution, (8) required that the ‘borrowing’ and reuse of short ‘samples’ of a phonogram, for the purposes of creating a new musical work, be freely permitted. Accordingly, the related right of the producer of that phonogram had to defer to such a practice. That could be done either by (i) interpreting that related right of reproduction as not covering short ‘samples’ or (ii) ruling that a new work created using such ‘sample’ may be published and exploited without the consent of the producer of the source phonogram under Paragraph 24(1) of the UrhG. (9) The BVerfG referred the case back to the BGH for reconsideration.

13.Subsequently, the BGH referred several questions to the Court asking, inter alia, whether (i) the right of reproduction in favour of phonogram producers, as laid down in Article 2(c) of the InfoSoc Directive, covered the ‘borrowing’ of ‘samples’ of phonograms and (ii) Paragraph 24(1) of the UrhG was compatible with that directive. In its judgment in Pelham I, the Court replied (inter alia) that (i) the right of reproduction at issue covered ‘samples’ as soon as they were ‘recognisable to the ear’ in new content and (ii) Paragraph 24(1) of the UrhG was indeed incompatible with that directive.

14.Following the Court’s reply, by a decision of 30 April 2020, the BGH referred the case back to the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany) for reconsideration.

15.On 7 June 2021, a new version of the UrhG entered into force. In that context, Paragraph 24(1) was repealed and a new provision, namely Paragraph 51a, was introduced. That new provision freely permits the reproduction of copyright-protected material for the purposes of, inter alia, ‘pastiche’.

16.By decision of 28 April 2022, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) assessed the alleged continuous infringement of copyright by distinguishing between three periods. First, with respect to the period between the date of the release of Nur mir in 1997 and the expiry of the deadline for transposition of the InfoSoc Directive (22 December 2002), it ruled in favour of Pelham and Others, considering that the ‘sampling’ at issue was freely permitted under (former) Paragraph 24a of the UrhG. Secondly, with respect to the period after the expiry of the deadline for the transposition of the InfoSoc Directive, but before the entry into force of the new Paragraph 51a of the UrhG (7 June 2021), it ruled in favour of the members of Kraftwerk, in the light of the judgment of the Court in Pelham I. Finally, with respect to the period after 7 June 2021, the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg) ruled again in favour of Pelham and Others, considering that the use of the contentious ‘sample’ could be freely permitted under the new ‘pastiche’ exception laid down in Paragraph 51a of the UrhG.

17.CG and YN subsequently brought a new appeal on a point of law (Revision) before the BGH, against the part of the judgment regarding the period after 7 June 2021. That court observes that Paragraph 51a of the UrhG transposes Article 5(3)(k) of the InfoSoc Directive and, thus, must be interpreted consistently with it. The same court suggests that, since the term ‘pastiche’ is open-ended and the exception at issue pursues the objective of ensuring freedom of the arts, as guaranteed under Article 13 of the Charter, that exception could be regarded as a ‘catch-all clause’ for artistic reuse of pre-existing work or other subject matter, including ‘sampling’. As such, it could function as a general limitation of copyright in favour of artistic freedom, which would be necessary because the other principles, exceptions and limitations curtailing the scope of copyright and the related rights do not, on their own, ensure sufficient ‘breathing space’ in that regard. Nevertheless, as this is a new question of EU law and the outcome of the appeal on a point of law (Revision) depends on it, the BGH decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the provision limiting [copyright with respect to] use for the purpose of pastiche within the meaning of Article 5(3)(k) of [the InfoSoc Directive] a catch-all clause at least for artistic engagement with a pre-existing work or other object of reference, including sampling? Is the concept of pastiche subject to limiting criteria, such as the requirement of humour, stylistic imitation or tribute?

(2) Does use ‘for the purpose of’ pastiche within the meaning of Article 5(3)(k) of [the InfoSoc Directive] require the determination of an intention on the part of the user to use copyright subject matter for the purpose of a pastiche, or is it sufficient for the pastiche character to be recognisable for a person familiar with the copyright subject matter who has the intellectual understanding required to perceive the pastiche?’

18.The present request for a preliminary ruling, dated 14 September 2023, was lodged on 25 September 2023. Written observations have been submitted by CG, Pelham and Others, the German Government and the European Commission. Those interested persons were represented at the hearing that took place on 14 January 2025.

IV.Analysis

19.As indicated in the introduction, the background of the present case is the reuse of existing works (protected by copyright) or other subject matters, such as phonograms (protected under copyright-related rights), (10) for the purpose of a new creation (a practice of which ‘sampling’ is but one example). Against that background, by its two questions, which I will examine together, the referring court wonders whether the exception to copyright and related rights dedicated to the use of works or other subject matters for the purpose of ‘pastiche’, laid down in Article 5(3)(k) of the InfoSoc Directive, constitutes a ‘catch-all clause’ for such practices of artistic reuse of protected material.

20.Behind those questions of interpretation of a yet-unexplored concept of EU law (‘pastiche’) lies a more fundamental issue, namely that of ‘marrying’ the system introduced by the InfoSoc Directive with the freedom of the arts guaranteed by Article 13 of the Charter. As stated earlier, the BGH envisions the unwelcome possibility that, if the ‘pastiche’ exception were to be interpreted as not covering such artistic practices, given that the other limitations and exceptions which restrict copyright and the related rights might not leave sufficient leeway in that regard, that system would be at odds with that freedom.

21.In order to be as illustrative as possible, I will start by analysing how the copyright and related rights laid down in the InfoSoc Directive, as construed by the Court, impose limitations on artistic reuse of protected material and, consequently, on the freedom of the arts provided by Article 13 of the Charter (A). I will then explain that the ‘pastiche’ exception to copyright and related rights cannot be construed as a ‘catch-all clause’ for such practices, and that the other existing exceptions and limitations offer limited relief in that respect (B). That will lead me to address, finally, the delicate question of the compatibility of the system introduced by the InfoSoc Directive, as it stands, with Article 13 of the Charter (C). (11)

A.How copyright and the related-rights serve but also impose limitations on the arts

22.I will start by addressing the nature and scope of the limitations that (EU) literary and artistic property impose on the freedom of the arts laid down in Article 13 of the Charter (1), before putting those limitations into perspective (2).

1.‘The arts … shall be free of constraints’; yet, ‘thou shall not steal’

23.Article 13 of the Charter guarantees ‘freedom of the arts’ within the scope of EU law. (12) That freedom is regarded as an aspect (worthy of its own distinct status) of the freedom of expression guaranteed by Article 11 of the same instrument. (13) As such, it comprises the rights for everyone to ‘impart information and ideas’ in the form of art (14) (that is to say, a right to imagine, create and share artworks) (15) and to ‘receive’ (that is to say, to have access to) them, in each case ‘without interference by public authority’. Thence Article 13 of the Charter provides that ‘the arts … shall be free of constraint’.

24.Copyright, as harmonised by the InfoSoc Directive and various international conventions, (16) undeniably fosters freedom of the arts. It constitutes a ‘positive measure of protection’, adopted by public authorities to guarantee the effective enjoyment of that freedom. (17) Indeed, under copyright, creators (falling under the category of ‘author’) are granted a set of exclusive economic rights (18) (essentially, a monopoly) over the exploitation of their intellectual creations (thereby designated as ‘works’), provided that those are ‘original’. (19) In particular, they enjoy, under Article 2(a) of that directive, (20) an exclusive reproduction right covering, as a rule, any reproduction ‘in whole’ or ‘in part’ of their ‘works’. That monopoly supports the creators of yesterday, by offering them a possibility to control and reap the fruits of their creations. (21)

25.At the same time, copyright also limits, by its very nature, the ability of the creators of tomorrow to borrow from existing works for the purpose of creating something new. In other words, it ‘constrains’, to that extent, their own right to ‘impart’ art to the public under Article 13 of the Charter. (22)

26.To be clear, it does not mean that those creators cannot ‘borrow’ anything from existing works. I recall, first, that copyright only protects the concrete form of a given work, not the abstract ideas expressed therein, following the so-called ‘idea/expression dichotomy’. (23) Secondly, many formative elements of existing works are not protected either when taken in isolation. (24) In music, that includes not only individual notes but, more broadly, common rhythms, scales, chords and progressions, harmonies and musical phrases. (25) Accordingly, the creators of tomorrow are, in principle, free to scour the works of yesterday, borrow such ideas and elements and recombine them into new creations. That is, in my view, an imperative requirement of freedom of the arts. A contrary solution would undermine the ‘essence’ of that freedom (for it would effectively nullify it). Any cultural creation builds upon what came before. In most instances, it consists in processing past material in an ‘original’ way. The works of tomorrow may even, because of those borrowings, appear (very) similar to those of yesterday without offending copyright. In fact, in music, new creations are usually classified within a given ‘genre’ because they contain features (a particular ‘beat’, some musical motifs, a ‘groove’, a ‘mood’, and so on) commonly displayed by other, prior works.

27.Nevertheless, under the Court’s case-law, (26) as soon as a creator ‘borrows’ from an existing work elements which are ‘original’ (for instance, the melody of a song, or a sufficiently distinctive extract of that melody) (27) and uses them, in a perceptible way, (28) in a new creation, that constitutes a ‘reproduction’ (in whole or in part, as the case may be) of that work under Article 2(a) of the InfoSoc Directive, which, as a rule, (29) is prohibited unless the author authorises it. The fact that that ‘borrowing’ happens to be limited or that that creation also contains the creator’s own input and, as a result, conveys a different overall impression from the source work is irrelevant in that respect.

28.Similar (although not identical) considerations apply with respect to the copyright-related reproduction rights provided for in Article 2(c) to (e) of the InfoSoc Directive. (30) I recall that those rights are granted to phonogram producers (point (c)), (31) producers of the first fixations of films (point (d)) and broadcasting organisations (point (e)) and cover any reproduction ‘in whole or in part’ of, respectively, their phonograms, ‘the original and copies of their films’ and ‘fixations of their broadcasts’, independently from the copyright on the works that those subject matters may embody. (32) They are designed to offer producers of music, films and broadcasts the opportunity for ‘satisfactory returns’ on the ‘considerable’ investment required to produce such subject matters. Those rights are meant to ensure, in turn, that those stakeholders continue financing authors and their creative work and, thus, contribute (indirectly) to freedom of the arts. (33)

29.At the same time, those rights limit the ability of the creators of tomorrow to reuse existing phonograms (for instance, through ‘sampling’) or fixations of films and broadcasts for the purpose of creating something new. Here as well, they ‘constrain’, to that extent, their right to ‘impart’ art to the public under Article 13 of the Charter. (34)

30.Indeed, as a rule, (35) following the interpretation given by the Court in the judgment in Pelham I with respect to phonograms, but which is plainly transposable to fixations of films and broadcasts, (36) taking even a ‘very short’ extract of such a subject matter (such as the two-second ‘sample’ at issue in the present case, or a single frame of a film), and re-using it, in such a way that it remains ‘recognisable to the ear’ (37) (or to the eyes), in a new creation falls under the exclusive reproduction rights laid down in Article 2(c) to (e) of the InfoSoc Directive and is, thus, prohibited unless the rightholders authorise it. Here again, the fact that that creation may also contain the creator’s own input and, as a result, conveys a different overall impression from the source material reused is irrelevant. (38)

2.‘A good composer does not imitate; he steals’ – so do YouTubers

31.As explained in the previous section, artistic and literary property rules, as they currently stand, operate, with respect to the creators of tomorrow, on a strict division between, on the one hand, ‘inspiration and reformulation’, (40) which is freely permitted, and, on the other, the copying of protected material, which, as a rule, is not allowed.

32.Besides the fact that the line that separates ‘inspiration’ and ‘reproduction’ is not always clear in practice, (41) and while plagiarism presented as ‘original’ and uninspired imitations have always existed, the issue with that strict division is that the practice of ‘creative copying’ has been pervasive in the arts, especially in music, (42) throughout history. Classical composers such as Bach, Mozart, Haydn and Liszt routinely (and ‘recognisably’) reused popular melodies and tunes, adding their own ideas and turning them into new creations, such as variations. (43) Such practice was also prominent in modern music, as composed by artists such as Bartok, Steiner or Ives. (44) Popular music has never been short of those either. From the Beatles’ ‘All you need is love’, opening on the first bars of the French national anthem ‘La Marseillaise’, composed by Rouget de Lisle, to Serge Gainsbourg’s Aux armes et cætera, playfully ‘transforming’ that same anthem into a reggae, the examples are countless. The entire musical genre of jazz was built on musicians turning the themes of popular songs of their times into standards that they reinterpret differently every night and on which they improvise, routinely ‘quoting’ other tunes. In that context, the use of ‘sampling’, beyond the fact that it involves direct copying of recordings, instead of merely taking extracts of other works, is but an iteration of that wider phenomenon. (45) Such recognisable reuse of existing material is a marker of intertextuality in the arts. (46) As that reality becomes more accepted in current times, artists pride themselves, more than before, in such copying. (47)

33.Furthermore, since the end of the 20th century, information technology has provided new and accessible means of both copying and creation. The rise of Web 2.0 and Web 3.0 and, especially, of social networks, blogs, sharing platforms such as YouTube (and so on), has blurred the traditional distinction between producer and consumer of cultural content, with internet users taking a more active role by engaging with audio-visual content, such as third-party phonograms, films and broadcasts (and the works they embody) and creating their own content with them, such as ‘remixes’ (48) and ‘mashups’. (49) The web has also provided those users with previously unimaginable means of dissemination of their creations. In that context, third-party material is also becoming more and more a means of communication outside the artistic domain. Generations of internet users express themselves through ‘memes’ (50) and ‘GIFs’ (51) often made out of a few frames of films or broadcasts.

34.Many of the examples given above stem from a time where copyright and related rights did not exist or did not have the reach that they have nowadays. (52) Others, like ‘sampling’ in hip hop in the United States in the 1980s, developed because the novelty of the practice created a sort of ‘legal limbo’ (before the US courts decided, in the wake of the 1990s, that copyright had to be strictly applied). (53) Others, like ‘memes’ and ‘GIFs’ online, thrived under some sort of de facto acceptance. However, nowadays, as is clear from the previous section, all those examples fall, in principle, within the scope of an exclusive right laid down in Article 2 of the InfoSoc Directive, which is granted to certain rightholders no matter how small the amount of protected material reused (as I said, even a few seconds of a phonogram or a few frames of a film). They are regarded as a mere ‘derivative’ of their source material and, as such, are entirely dependent on the will of the rightholders to authorise them (or not), as the case may be, subject to the fee that those rightholders deem appropriate. (54)

35.Furthermore, as technology facilitates copying and dissemination of protected material, it also enables those rightholders to discover such copying and effectively enforce their right. Filtering tools are routinely used online automatically to detect the presence of extracts of phonograms, films or broadcasts in content uploaded by users. In fact, Article 17 of the CDSM Directive obliges the main online sharing platforms to put such software in place. (55) The fear, thus, is that those broad exclusive rights and their enforcement have a ‘chilling effect’ on certain forms of creativity, online and beyond. (56)

B.The (limited) relief provided by the existing exceptions and limitations to copyright and related rights

36.Nevertheless, the InfoSoc Directive leaves some ‘breathing space’ for ‘derivative’ expressions. Indeed, Article 5(1) to (4) features an enumeration of optional (57) ‘exceptions and limitations’ which curtail (inter alia) the reproduction rights laid down in Article 2 of that directive (copyright and the related rights alike). Those exceptions and limitations were designed by the EU legislature to safeguard, within the literary and artistic property system, a ‘balance’, which that legislature regarded as ‘fair’, between, on the one hand, the rights and interests of rightholders and, on the other, those of users of protected material as well as the public interest. (58) They envision a few well-defined scenarios in respect of which the legislature considered that protected material should be free to use, because certain considerations outweighed, in its view, the rightholders’ interests.

37.I underline that that enumeration of exceptions and limitations is meant to be exhaustive. (59) The Court deduced from that that Member States cannot provide, in their national law, for additional possibilities freely to use protected material. That had the consequence, inter alia, of precluding the ‘free use’ clause initially provided in Paragraph 24(1) of the UrhG, which permitted the creative reuse of protected material where it resulted in a work which conveyed a different overall impression from the source. (60) Furthermore, according to the Court’s case-law (see Funke Medien NRW (61) and Spiegel Online (62)), judges also cannot accept further derogations from those rights based on freedom of expression or freedom of the arts, as guaranteed, respectively, in Article 11 and Article 13 of the Charter. The Court considers, in essence, that such additional exceptions would undermine the harmonisation brought about by the InfoSoc Directive and, with it, the internal balance established by the legislature when designing it.

38.A handful of the existing exceptions and limitations to copyright and the related rights are relevant for the creative reuse of protected material, namely that concerning ‘quotations’ provided for in Article 5(3)(d) of the InfoSoc Directive and those concerning ‘caricature’, ‘parody’ and ‘pastiche’, laid down in Article 5(3)(k) of that directive. I will focus in the next points on the crux of the questions referred, namely the ‘pastiche’ exception, and why it offers, in reality, limited leeway for such reuse (1). In addition, as they will be useful for section C below, I will make some comments with respect to the (similarly limited) room offered by the ‘quotation’ (2) and ‘parody’ (3) exceptions.

1.The scope of the ‘pastiche’ exception

39.As stated above, Article 5(3)(k) of the InfoSoc Directive provides exceptions to the reproduction rights laid down in Article 2 of that directive (copyright and related rights) in the case of use of works or other protected subject matters for the purpose of ‘caricature, parody or pastiche’. Apart from the purpose of the use, that provision does not indicate any requirements for the application of those exceptions. Accordingly, their scope depends on the meaning of the three concepts listed in that provision. Unfortunately, that directive does not offer any definition in that regard. The Court filled that gap, with respect to the concept of ‘parody’, in the judgment in Deckmyn. (63) It ruled that ‘the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’. By contrast, as stated above, the Court has never explored the concept of ‘pastiche’.

40.In fact, for the first 20 years or so following the adoption of the InfoSoc Directive, that concept had been generally neglected by courts and legal commentators alike. As an optional

provision, Article 5(3)(k) found an equivalent in the national laws of some Member States only and, even there, ‘pastiche’ was assumed to be a mere, negligible synonym of ‘parody’ (or completely omitted in the transposition process). (64) Notably, there was no such thing as a ‘pastiche’ exception in German law. (65)

However, the adoption of Article 17 of the CDSM Directive gave a new lease of life to, and generated a renewed interest for, that concept. Indeed, paragraph 7(b) of that provision now obliges Member States to transpose various exceptions, including that of ‘pastiche’, in their national law (at least with respect to the uses of protected material by users of online content-sharing services covered by Article 17). (66)

Member States modified their national copyright law accordingly. In particular, in 2021, the German legislature adopted a reform of the UrhG. (67) It inserted in the UrhG, inter alia, a new Paragraph 51a, corresponding to Article 5(3)(k) of the InfoSoc Directive. (68) In that context, the German legislature took a broad view of the term ‘pastiche’. While the UrhG provides no definition in that regard, the explanatory memorandum that accompanied the reform states that that term covers potentially a wide range of creative reuses of protected material, including in UGC, and expressly refers, among other things, to remixes, memes, GIFs, mashups and ‘sampling’ as examples. (69) That broad view was endorsed, in the main proceedings, by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg). That court considered that Pelham and Others reused the contentious ‘sample’ of ‘Metall auf Metall’ ‘for the purpose of … pastiche’ within the meaning of Paragraph 51a of the UrhG. (70)

Nevertheless, it is undisputed that, since Article 5(3)(k) of the InfoSoc Directive does not refer to the law of the Member States in that regard, the concept of ‘pastiche’ must be regarded as an autonomous concept of EU law, calling for a uniform definition, suitable to ensure an (equally) uniform application of the corresponding exception throughout the European Union. (71) Accordingly, Member States are not free to adopt their own vision of ‘pastiche’ in their national copyright law. They must abide by that autonomous definition. The crux of the questions referred is thus whether the ‘German vision’ of ‘pastiche’ does so.

According to the Court’s settled case-law, (72) the autonomous definition of the concept of ‘pastiche’ within the meaning of Article 5(3)(k) of the InfoSoc Directive must be determined by considering the usual meaning of that term in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it forms part. While all the interested persons who submitted observations before the Court agree on that method, they come to drastically different outcomes.

On the one hand, CG, rejecting the view adopted by the German legislature under Paragraph 51a of the UrhG, submits that that concept covers works which purposefully and overtly imitate, in a humoristic or satirical fashion, the style of another work or an author (or of several works or authors belonging to the same ‘genre’ or ‘school’). As such, the ‘pastiche’ exception would not allow the direct reuse of protected material, including phonograms, for the purpose of creating a new artwork devoid of such imitative intent. (73)

On the other hand, Pelham and Others, the German Government and the Commission, in line with the position adopted by the German legislature in Paragraph 51a of the UrhG, and drawing on the definition of ‘parody’ given in the judgment in Deckmyn, submit that the concept of ‘pastiche’ covers any object which (i) ‘evoke[s] an existing work’ or subject matter (in the sense of reproducing, in a perceptible fashion, protected material) while (ii) ‘being noticeably different from it’ (in the sense of conveying a different impression on the viewer or listener). However, unlike a ‘parody’, a ‘pastiche’ would not have to ‘constitute an expression of humour or mockery’. Still, (iii) an ‘artistic confrontation’ with the source material would be required. However, that ‘confrontation’ could take any form: the source material could have been substantially altered or transformed into a different style, (74) or put in a new context, or given a new meaning or message, by the ‘pasticheur’. No further interaction with the source material is required. In particular, the object created does not have to be critical of, enter into ‘dialogue’ (75) with, or be imitative of the style of, or even be an homage to, the source material. (76).

Accordingly, for those interested persons, the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive functions, as envisioned by the BGH in its first question, as a ‘catch-all clause’ covering potentially any creative (or even simply communicative) expression based on the reuse of protected material, including, indeed, remix, memes, GIFs, mashup, sampling (and so on), covered by Article 11 or Article 13 of the Charter. (77) Nevertheless, the broad scope of that exception would be compensated, on a case-by-case basis, by the obligation for judges, faced with such a defence against a claim of infringement, to verify, in the light of all the relevant circumstances (extent of the material copied, extent of the creative input, commercial or non-commercial nature of the use, risk of substitution, and so on), whether freely permitting the use at issue would respect a ‘fair balance’ between the rights and interests of the parties, pursuant to the three-step test laid down in Article 5(5) of the InfoSoc Directive. Under that provision, the ‘pastiche’ exception could only apply (i) in ‘certain special cases’ which (ii) ‘do not conflict with a normal exploitation of the work or other [subject matter]’ reused and (iii) ‘do not unreasonably prejudice the legitimate interests of the rightholder’.

While I have sympathy for the interpretation suggested by Pelham and Others, the German Government and the Commission (for it is a well-intended attempt to provide a pragmatic solution to the issue of creative reuse of protected material described in Section A), (78) and although some ambiguity surrounds the usual meaning of the term ‘pastiche’ in everyday language (a), the context in which that term is used (b) and the purpose of Article 5(3)(k) of the InfoSoc Directive (c) lead me, I am afraid, to conclude (in most, but not all aspects) in favour of CG (d).

(a)The usual meaning of the term ‘pastiche’

All the interested persons who submitted observations before the Court agree that giving an exhaustive account of the ‘usual meaning’ of the term ‘pastiche’ is not an easy exercise. Not only is that term rather ‘niche’ and, thus, scarcely encountered in ‘everyday language’, but it has been used in various (and not always coherent) ways through the ages across languages and artistic domains.

That being said, it appears from the dictionaries (in various languages) and studies published by art experts that I have consulted on the matter (and those that the translation units of the Court have consulted in their respective languages) that the term ‘pastiche’ is predominantly used to designate an artistic work in a style which imitates that of another work, artist or period (or works belonging to the same ‘genre’, and so on), (79) borrowing and blending together various motifs, tropes and other characteristic elements to that effect (in line with the etymological origin of the term, namely the Italian ‘pasticcio’, which refers to a dish made of a mixture of ingredients). (80)

That general category hides a diversity of understandings. Sometimes ‘pastiche’ is used to describe a concealed imitation, usually made with deceitful intent (making it a synonym of plagiarism). Historically, that understanding echoes, for instance, the ‘pasticcio painting’, a genre held in low esteem that blossomed in Italy in the wake of the Renaissance, where painters would produce paintings closely imitating those of great masters by skilfully combining technics and motifs borrowed from several of their masterpieces, which would then be fraudulently sold as originals. (81)

Other times, ‘pastiche’ has been used to describe, instead, an overt stylistic imitation. Within that category, in literature, the term refers, narrowly and exclusively, to a humoristic or satirical imitation of the style, manners or favourite themes of an author (or of a school), by reference to the ‘literary pastiche’, a genre that blossomed in France in the 18th century, displaying those features. (82) Unsurprisingly, ‘pastiche’ is construed that way in French copyright law (which contains, since the 1950s, an exception almost identical to Article 5(3)(k) of the InfoSoc Directive). On account of that humoristic or satirical aspect, the term is regarded therein as a mere subgenre of ‘parody’. (83) CG relies on that understanding before the Court.

Nevertheless, in other fields of art the term ‘pastiche’ is used to describe, more broadly, any artwork characterised by overt stylistic imitation. (84) If I may ‘creatively reuse’ myself the terms used by the Court in the judgment in Deckmyn, the essential characteristics of the ‘pastiche’, understood as such, are (i) to ‘evoke an existing work’ (or several works, or a genre, or an artist, or a school), by adopting his, her or its (or their) distinctive ‘aesthetic language’, otherwise foreign to the ‘pasticheur’, while (ii) being ‘noticeably different’ from the source imitated. Indeed, as stated above, such a ‘pastiche’ is not designed to be a bad faith forgery substituting itself for the source, but is, in fact, (iii) intended to be recognised as an imitation. (85) The precise purpose of the ‘pastiche’ is, by contrast, irrelevant: it may be, like a ‘parody’, an ‘expression of humour or mockery’, or otherwise critical of the source material. It may, instead, be a tribute or homage to that material. Nevertheless, a ‘pastiche’ is not necessarily ‘evaluative’ or otherwise commentative on that material. It may also be conceived, for instance, to evoke a particular cultural context. It can also be an end in itself (the ‘pasticheur’ showing his craftsmanship by telling a new story through imitation), and so on. (86) This form of overt, referential imitation is characteristic of postmodernism. (87)

In film studies, the works of Quentin Tarantino are often described as ‘pastiche’, as they skilfully, and overtly, replicate elements such as tropes, filming techniques, mise en scène, structure, plots, characters and themes (and so on) which are characteristic of past movies belonging to a given genre. (88) The same goes, in music, with respect to current artists such as Bruno Mars (89) because of their tendency to imitate past works belonging to a given genre by composing pieces that feature production styles, tropes, vocal techniques, common motives, arrangements and hooks typical of the latter. ‘Pastiche’ is also used to refer to works, such as Ridley Scott’s 1982 movie Blade Runner or Queen’s hit song Bohemian Rhapsody, which skilfully imitate and blend distinct styles. (90) In any case, stylistic imitation is at the heart of that conception of ‘pastiche’.

Admittedly, as Pelham and Others, the German government and the Commission underline, some dictionaries and experts indicate that the term ‘pastiche’ has also been used, and is to some extent still used, alternatively, to designate artworks made from recombining elements taken from other works, without any intent of stylistic imitation. (91) The ‘pasticcio opera’, a genre of quasi-operatic works consisting of a ‘patchwork’ of famous arias and musical pieces, popular in the 18th century, is the main example given in that regard. That understanding makes ‘pastiche’ a synonym of various terms evoking similar ‘patchwork’ practices, such as the literary ‘cento’, the ‘collage’ of visual arts, the musical ‘medleys’ or the ‘found-footage’ films. (92)

Nevertheless, beyond the fact that other experts distinguish, for instance, in music, ‘pastiche’ from ‘pasticcio’, (93) it seems to me that deducing from the explanation given in the previous point, as those interested persons do, that the term ‘pastiche’ is open-ended and may cover any case of creative reuse of existing material (from ‘memes’ to ‘mashups’ and ‘sampling’), exaggerates the importance of that alternative understanding in ‘everyday language’ (94) and, accordingly, the role it may have played in the design of the InfoSoc Directive. (95)

That being said, I agree that, given that ambiguity, (96) contextual and purposive interpretation is crucial to achieving a uniform definition of the legal concept of ‘pastiche’ contained in Article 5(3)(k) of the InfoSoc Directive. However, as I will explain in the next sections, those confirm my impression as to which ‘usual meaning’ of ‘pastiche’ must be endorsed in that regard.

(b)The context in which that term is used

I recall that the term ‘pastiche’ is used as part of an exception to copyright and related rights, laid down in Article 5(3)(k) of the InfoSoc Directive, which also refers to ‘caricature’ and ‘parody’.

On the one hand, a series of elements stemming from that particular context support, in my view, a definition of the contentious concept as stylistic imitation.

First, the grouping of ‘caricature’, ‘parody’ and ‘pastiche’ in a single provision necessarily implies that, in the mind of the EU legislature, they have some common features. In the light of the explanations given in points 50 to 54 above, it seems reasonable to assume that the legislature considered ‘pastiche’ to be, like ‘parody’ (and presumably ‘caricature’), a form of derivative expression based on imitation of a source.

Secondly, given that context, it is clear, in my view, that the legal concept of ‘pastiche’ cannot encompass the kind of concealed imitation described in point 51 above. It would be contrary to the very nature of the EU artistic and literary property regime to grant an exception for plagiarism. That concept may only cover the sort of overt stylistic imitation discussed in points 52 to 54 above.

Thirdly, contrary to what CG submits, that concept cannot be limited to the French literary understanding of ‘pastiche’, mentioned in point 52, as a humorous or satirical imitation, making it a synonym of ‘parody’. The fact that ‘parody’ and ‘pastiche’ have some common traits and, for that reason, are both contained in Article 5(3)(k) does not mean that the two should be entirely assimilated for legal purposes. Where the legislature chooses to include distinct terms, on equal footing, in the text of the law, the Court should be weary to interpret one of them as legally redundant (all the more so when interpreting a closed, exhaustive list of exceptions and limitations). (97)

It follows from those considerations that, in my view, the concept of ‘pastiche’, within the meaning of Article 5(3)(k) of the InfoSoc Directive, covers the broad range of artworks characterised by overt stylistic imitation, presenting the essential characteristics defined in point 53 above. (98) One last contextual element should be added at this stage. Nothing in the wording of that provision requires the ‘pastiche’ created by the user to be an original work within the meaning of copyright. Thus, while, as stated above, a ‘pastiche’ needs to be ‘noticeably different’ from the source, it does not need to pass the threshold of ‘originality’. (99)

64.The main counterargument of a contextual nature brought by Pelham and Others, the German Government and the Commission against such an interpretation of ‘pastiche’ as a stylistic imitation is that it would, in their view, deprive the corresponding exception of all effet utile, contrary to the requirement for the interpretation of exceptions laid down by the Court. (100) Indeed, such an imitation would not, from the outset, fall under the reproduction rights laid down in Article 2 of the InfoSoc Directive. ‘Style’ is not, as such, protected by copyright. It belongs to the realm of ideas, rather than expressions. (101) Similarly, elements such as common motifs, structures or technics (and so on) characteristic of an artistic school or genre, while they may be formative elements of a work, are not protected either. (102)

65.That objection does not convince me. Obviously, as a derogation from the reproduction rights laid down in Article 2 of the InfoSoc Directive (copyright and related rights alike), the ‘pastiche’ exception provided for in Article 5(3)(k) of that directive is designed for situations where (at least) one of those rights is triggered. As such, it must be construed in a way that permits, to some extent, the ‘use’ of protected material, such as ‘original’ parts of works, or ‘samples’ of phonograms, otherwise it would indeed become pointless.

66.Nevertheless, when it comes to imitative artworks, the line between the borrowing of unprotected elements and the reproduction of protected material is tenuous. A series of recent lawsuits saw authors claiming that their ‘unique’ style qualifies as ‘original’ expression. (103) Another series, particularly commented on, saw rightholders alleging copyright infringement over the reuse of stylistic features present in their works. (104) That is even truer where the artwork imitates closely the style of a single work. The elements borrowed, while ‘stylistic’, could still be regarded as original, especially when combined. (105)

67.In fact, under the definition that I suggest, the ‘pastiche’ exception would provide creators with some leeway to reuse protected elements from works or subject matter (in a ‘recognisable’ way) in their creation, so long as those elements serve an overt imitation of something else. (106) For instance, the user can perfectly well reuse ‘samples’ taken from phonograms (107) to create a ‘pastiche’ of the genre to which the underlying works belong. (108) Simply, such reproduction of protected material does not, in itself, make the ‘pastiche’. The resulting imitative artwork does. Overall, the effet utile of the ‘pastiche’ exception is safeguarded by such an interpretation.

68.On the other hand, other contextual elements clearly oppose, in my view, defining the concept of ‘pastiche’, within the meaning of Article 5(3)(k) of the InfoSoc Directive, as referring to any artwork made of protected material, without any intent of stylistic imitation, as suggested by Pelham and Others, the German Government and the Commission.

69.First, as CG submits, nothing in the wording or structure of that provision indicates that the ‘pastiche’ exception was designed to be a ‘catch-all clause’ for creative (or even communicative) reuse of protected material. By enumerating therein, on an equal footing, three distinct concepts (‘caricature’, ‘parody’ and ‘pastiche’), the legislature intended to permit three clearly defined categories of use. (109) Turning ‘pastiche’ into such a ‘clause’ would also render the two other concepts redundant, as ‘caricature’ and ‘parody’ would be seen as mere instances of creative reuse, subsumed under the former. (110)

70.Secondly, while it follows from the Court’s case-law, cited in point 64 above, that the exceptions and limitations enumerated in Article 5(1) to (4) of the InfoSoc Directive must not necessarily be interpreted strictly and that, instead, their effet utile must be preserved, it seems to me that the interpretation of the ‘pastiche’ exception suggested by the Pelham and Others, the German Government and the Commission is as remote as can be from a strict interpretation. It does not merely safeguard its effet utile; it maximises it, by granting it the widest possible scope.

71.Thirdly, as stated in points 36 and 37 above, the system of exceptions and limitations laid down in Article 5 of the InfoSoc Directive, as it stands, enumerates in an exhaustive manner cases in which use of protected material is freely permitted. While some of those cases are relatively wide in scope (such as ‘quotations’ or ‘private copy’), they are never completely open either. By contrast, under the construction suggested by Pelham and Others, the German Government and the Commission, the ‘pastiche’ exception under Article 5(3)(k) of that directive would cover an ill-defined, potentially unlimited range of creative reuses of protected material, (111) subject only to case-by-case balancing under the (equally open) three-step test provided for by Article 5(5), in the light of various factors (extent and purpose of use, risk of substitution, and so on). In effect, as CG submits, that would transform that exception into a general ‘fair use’ clause, such as the one found in other legal systems, including in the United States, (112) the flexible, case-by-case logic of which is at odds with the closed nature of the EU system. (113) It would also have the curious effect of (re)legitimising the ‘free use’ clause laid down in Paragraph 24(1) of the UrhG that the Court regarded as incompatible with that very system in the judgment in Pelham I.

72.The ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive rests on the freedom of expression and the freedom of the arts of users of works or other protected subject matter. (114) In the light of that rationale, it is equally clear that that exception confers ‘rights’ on those users. (115)

73.That being said, in my view, the legislature aimed, with that exception, more specifically to contribute to that freedom by allowing certain ‘derivative’ expressions protected under Article 11 and/or Article 13 of the Charter, namely ‘pastiches’. Indeed, those ‘pastiches’, as defined in point 53 above, are artworks falling under Article 13 of the Charter. They may also be used to express opinions protected under Article 11 thereof. (116)

74.By contrast, it would be a misconception to deduce from that fundamental right underpinning that the ‘pastiche’ exception was meant to cover potentially all of those ‘derivative’ expressions (subject to the three-step test provided for in Article 5(5) of the InfoSoc Directive).

75.That it was never the purpose of the ‘pastiche’ exception is also evident from the process of revision of the EU literary and artistic property acquis that preceded the adoption of the CDSM Directive and from the travaux préparatoires thereof. (117) In that context, it was proposed to add to that acquis an exception for creative or communicative reuse of protected material (especially in UGC), (118) which was even considered, for a time, by the Commission (119) as well as by members of the European Parliament. (120) Evidently, at the time, nobody thought that the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive already fulfilled that function. Eventually, both institutions abandoned the idea (121) and the EU legislature ultimately limited itself to restating the ‘pastiche’ exception in Article 17(7)(b) of the CDSM Directive. (122)

76.However, the teleological argument made by Pelham and Others, the German Government and the Commission to support their interpretation of ‘pastiche’ is somewhat different. In essence, they argue that, following the Court’s case-law, Article 5(3)(k) of the InfoSoc Directive should be interpreted in a manner which ‘fully adheres’ to the fundamental rights guaranteed under Article 11 and Article 13 of the Charter. (123) In that regard, those interested persons claim that, if a wide range of creative (or even simply communicative) practices based on reuse of protected material, including remix, memes, GIFs, mashup, sampling (and so on) found no support in the ‘pastiche’ exception, forms of expression which are both omnipresent in the current digital environment and socially desirable would be at risk. Such an interpretation would put the InfoSoc Directive at odds with those fundamental rights.

77.As I will explain later in detail, I concur, to a certain extent, with those considerations. In fact, I agree that the EU literary and artistic system, as it stands, does not leave sufficient leeway for certain creative reuses of protected material fully to align with, in particular, freedom of the arts. Nevertheless, the fundamental rights-consistent interpretation of the concept of ‘pastiche’ suggested by those interested persons is not an appropriate way to remedy that issue.

78.Indeed, a Charter-consistent interpretation of a text of EU secondary law presupposes that that text is open to such an interpretation, given its wording, economy and purpose. (124) Here, as I have already explained, the concept of ‘pastiche’ used in Article 5(3)(k) of that directive, read in a contextual and purposive manner, is not open to the interpretation suggested by those interested persons. Endorsing such a position would be stretching that provision to the point of distortion.

79.As explained in point 37 above, the Court took the view that, because the list of exceptions and limitations laid down in Article 5(1) to (4) of the InfoSoc Directive is exhaustive, judges cannot grant additional derogations from copyright and the related rights on the basis of the fundamental rights guaranteed in the Charter. Similarly, in my view, the Court also cannot distort an existing exception, in the light of freedom of expression, to permit uses it was never designed for. (125) That would be tantamount, in my view, to an interpretation contra legem. It would compromise the ‘fair balance’ established by the legislature between rightholders and users and the ‘high level of protection’ of the former that that legislature desired. (126)

80.In such a situation, where consistent interpretation is not an option, what remains to be discussed is whether the InfoSoc Directive is compatible with those fundamental rights. As indicated before, I will examine this in section C.

81.It follows from the foregoing considerations that a ‘pastiche’, within the meaning of Article 5(3)(k) of the InfoSoc Directive, is 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. The use of protected elements from works or other subject matters, including ‘samples’ of phonograms, falls under the corresponding exception where it results in an artistic creation presenting those essential characteristics.

82.The second question of the BGH concerns, specifically, whether the existence of such a ‘pastiche’ requires determining the subjective intent of the user, or whether it is sufficient for the ‘pastiche’ character to be recognisable by a person familiar with the material reused and who has the intellectual understanding required to perceive it. It calls, in my view, for a brief answer. On the one hand, it stems from the above definition that a ‘pastiche’ is characterised, inter alia, by the fact that it is intended to be recognised as an imitation (by contrast to plagiarism). Thus, whether the user had that intent is, indeed, decisive. On the other hand, it seems to me that, to guarantee the necessary legal certainty (and to avoid, in particular, that bad-faith users retrospectively present plagiarism as ‘pastiche’ in the event of infringement proceedings), that intent should be assessed objectively. Accordingly, the ‘pastiche’ nature of the use should be evident in the end result. It should be indicated (in some way) therein or, at least, recognisable as such by the viewer or listener familiar with the source.

83.Accordingly, the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive provides limited leeway for creative reuse of protected material. ‘Samples’ and other borrowings of such material which do not serve such an artistic, overt stylistic imitation are not covered by that exception. For instance, it cannot apply to the reuse of a ‘sample’ taken from a phonogram, such as that embodying ‘Metall auf Metall’, to create a new musical work in a completely different style, such as ‘Nur mir’. (127) The remaining exceptions and limitations offer similarly limited room, as will be discussed in the following sections.

2.The ‘quotation’ exception

84.Article 5(3)(d) of the InfoSoc Directive contains an optional exception to, inter alia, the reproduction rights laid down in Article 2 of that directive for uses that may be characterised as ‘quotations’ and fulfil certain conditions. In addition, under Article 17(7)(a) of the CDSM Directive, that exception is mandatory with respect to the online uses covered by that provision. (128)

85.It follows from the judgment in Pelham I that that exception is not limited to the paradigm reproduction of an extract of a literary work in another text, but may cover the use of other types of works (musical, cinematographic, and so on) or subject matters (phonograms, fixation of films, and so on) in other types of content. In particular, using a ‘sample’ of a phonogram and its integration in new musical content may qualify as a ‘quotation’. (129)

86.Furthermore, ‘quotations’ are not permitted only for the purposes enumerated in Article 5(3)(d) of the InfoSoc Directive (namely ‘criticism or review’), that enumeration being only indicative (‘…for purposes such as …’). As the Court (implicitly) admitted in the judgment in Pelham I, such a ‘quotation’ may very well pursue a different, artistic purpose. (130)

87.Obviously, that means that the ‘quotation’ exception is relevant when it comes to reuse of protected material in the arts. The express requirements laid down in that provision are not excessively limiting in that regard either. First, ‘the source, including the author’s name’ must ‘unless this turns out to be impossible’ be indicated. With respect to, for instance, the ‘quotation’ of a musical work in other musical content, it may be difficult to do so within that content itself. (131) Nevertheless, including such information in the accompanying material (leaflet, description, and so on) satisfies the ‘spirit’ of attribution inherent in that requirement. (132) Secondly, the use of a ‘quotation’ must simply be ‘in accordance with fair practice’ and ‘to the extent required by the specific purpose’, that is to say, proportionate. Thus ‘quoting’ long extracts of a protected work or subject matter, or even the whole of it, may, depending on the circumstances, be freely permitted. (133)

88.Nevertheless, the ‘quotation’ exception provided for in Article 5(3)(d) of the InfoSoc Directive does not encompass any kind of artistic reuse of protected material either. Pursuant to the definition of ‘quotation’ adopted by the Court in the judgment in Pelham I, to qualify as a ‘quotation’, third-party material, for instance a ‘sample’ of a phonogram, must be reproduced (i) for the purpose of ‘entering into dialogue’ with the underlying work so ‘quoted’, which presupposes (ii) that the listener or viewer can ‘identify’ that work. (134)

89.connection inherent in any use of existing works or other subject matter in a new creation, such a use, to qualify as ‘quotation’, must be a vehicle for some sort of intellectual interaction between the new creation and the source material, ‘whether in confrontation, as a tribute to or in any other way’. (135) The mere appropriation of third-party material, because of its aesthetic properties, to be used as a building block is not enough. Furthermore, to fulfil that ‘dialogic’ function, a ‘quotation’ must be recognisable as a reference to third-party content. To be sure, a ‘quotation’ does not have to be set apart in the new creation (as it would be in a text, with quotation marks or italics). That would be impossible, for instance, with respect to a reference to a musical work in new musical content. The extract of third-party material may be integrated seamlessly in the latter. Nevertheless, it must be recognisable as a ‘quotation’ by the persons familiar with the source work and who have the understanding required to perceive the ‘quotation’. (136)

90.Construed as such, the ‘quotation’ exception laid down in Article 5(3)(d) of the InfoSoc Directive covers situations where creators refer, in an overt manner, to an existing work in their own creation, as a tribute to its author or its cultural importance, to evoke a shared cultural background, (137) or to contrast their own ideas, through such ‘quotations’, with those of past composers. (138) It also covers, as the Court hinted in the judgment in Pelham I, certain cases of ‘sampling’, including in hip hop, where recognisable ‘samples’ are intended to function as referential, digital ‘quotations’ of the underlying works. (139)

91.However, it will not cover many cases of reuse of protected material where ‘borrowing’ therefrom is not recognisable as a ‘quotation’ and the source is ‘merely’ appropriated to build a new creation, without any further intellectual interaction. That would include, for instance, besides most memes (140) and GIFs, the artistic practice of appropriating famous themes to build variations, or the use of ‘samples’ which are not meant to be recognised as a reference by the listener and/or are too short to allow any interaction with the underlying work (for instance, a single drum kick or a few seconds of an instrumental track, reused in a loop to become the rhythm section of a new creation), such as the one at issue in the main proceedings. (141)

3.The ‘parody’ exception

92.I recall that Article 5(3)(k) of the InfoSoc Directive (also) contains an optional exception related to the use of protected material ‘for the purpose of … parody’. That exception has become mandatory as well, under Article 17(7)(b) of the CDSM Directive, with respect to online uses covered by that provision.

93.I recall that, in the judgment in Deckmyn, the Court ruled that the essential characteristics of a ‘parody’ within the meaning of that provision are (i) ‘to evoke an existing work’ while (ii) ‘being noticeably different from it’, and (iii) ‘to constitute an expression of humour or mockery’. Beyond that, the parody content does not have to pass the threshold of ‘originality’. Furthermore, that content does not have to be a parody ‘of’ the source work. The latter can be reused simply as a means to express a humoristic or satirical message, targeting something else.

94.That fairly broad approach to ‘parody’ offers some room for creative reuse of protected material. (142) It may apply, for instance, to many instances of memes, involving the ‘recognisable’ reproduction of frames of films (143) and their humoristic subversion through substantial modifications and/or addition of captions.(144) Similarly, it may cover certain cases of mashups, potentially created through the ‘sampling’ of other phonograms, characterised by their humoristic tone or incongruity. (145) It can also cover certain ‘found footage’, where frames of films are reused in a humoristic way, (146) or even creative détournement of some beloved copyright-protected characters. (147)

95.Nevertheless, as it presupposes the humoristic or satirical subversion of protected material, that exception cannot cover subject matters such as reactional GIFs, or memes, based on material which was already humoristic. It cannot apply either, by hypothesis, to the whole range of creative reuses which are devoid of humoristic or critical intent, including most cases of ‘sampling’ (including the one at issue in the main proceedings).

C.The compatibility of the InfoSoc Directive with freedom of the arts

96.It follows from the previous section that, on the one hand, the exclusive reproduction rights granted to rightholders over their protected subject matters under Article 2 of the InfoSoc Directive limit the possibility for future creators to reuse those subject matters (or even a small fraction of them) in a perceptible way in new creations. On the other hand, the exceptions and limitations laid down in Article 5 of that directive, including the ‘pastiche’ exception, offer limited room in that regard. The question that remains therefore is that of the compatibility of such a system with the freedom of the arts under Article 13 of the Charter.

97.‘Derivative’ artistic expressions clearly fall within the scope of Article 13 of the Charter. By restricting those expressions, copyright and the related rights entail limitations of that fundamental freedom. They also limit, indirectly, the public’s right to access those expressions. Nevertheless, freedom of the arts is not absolute. In accordance with Article 52(1) of the Charter, such limitations are permissible provided that they (i) are ‘provided for by law’, (ii) respect the ‘essence’ of that freedom and (iii) respect the principle of proportionality, which entails that those limitations (a) ‘genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’ and (b) are appropriate, necessary and proportionate sensu stricto.

98.It is not disputed that the limitations at issue are ‘provided for by law’ (namely the InfoSoc Directive) and respect the ‘essence’ of freedom of the arts, as mentioned in point 26 above. (148) It is also clear that they meet the ‘need to protect the rights and freedoms of others’. As explained, respectively, in points 24 and 28 above, the copyright granted to authors over their work is a positive measure designed to protect their own right to freedom of the arts under Article 13 of the Charter; the related rights granted to producers of phonograms and films and to broadcasters are there to protect their investment. In addition, both types of rights warrant protection as ‘intellectual property’ under Article 17(2) of the Charter of Fundamental Rights. (149) Finally, the system laid down in the InfoSoc Directive is an ‘appropriate’ means to achieve the objectives pursued. It is also ‘necessary’ in that regard, since narrower exclusive rights, or broader exceptions and limitations, would not ensure, with the same efficiency, the ‘high level of protection’ of intellectual property sought by the EU legislature.

99.The sole contentious issue is whether the requirement of proportionality sensu stricto is satisfied, namely whether the disadvantages resulting from the restrictions imposed by the system introduced by the InfoSoc Directive on the freedom of the arts are proportionate to the advantages resulting from that system in relation to its objectives. (150)

100.Those disadvantages have been discussed earlier. As a rule, the perceptible reuse of protected material in a new creation falls under the reproduction right(s) of the rightholder(s) concerned, which may significantly restrict everyone’s ability to produce ‘derivative’ artistic expression. In that regard, it would be somewhat simplistic to dismiss the issue by saying that anyone wishing to do so ‘just’ needs to obtain authorisation from the rightholder(s), and pay a licence fee to that effect.

101.For instance, to borrow legally a ‘sample’ of a phonogram and use it in a new composition, an artist would, as a rule, need to obtain (i) necessarily a licence for the use of the phonogram and (ii) potentially a licence for the use of the underlying work (if the ‘sample’ embodies ‘original’ elements of the latter). (151) In that regard, beyond the fact that the rightholders are not always known or easy to locate, obtaining such licences will often be too much of a burden for new creators.

102.In the absence of a system of framed, compulsory licences for artistic reuse of works or phonograms (and so on), it is the freedom of contract that rules. However, the parties are not in the same negotiating position. The copyright system leaves rightholders entirely free to grant, or not to grant, a licence,which puts them in a strong bargaining position from the outset. They may claim, for the use of their material, a fee which may not be commensurate to the revenues that the ‘derivative’ creation could generate, should it be exploited. (152) Furthermore, the artists of yesterday and their producers (such as ‘the big majors’) will often have the financial means necessary to reinforce their bargaining position. While other famous artists and producers will be in a position to negotiate at arm’s length, that will not be the case for small artists. This leads to a risk of a ‘two-tier’ possibility of creation, with ‘derivative’ works being something reserved to the mighty and wealthy.

103.Finally, the rightholders of yesterday may simply refuse to permit the reuse of their work, leading to creators having to choose between (i) not creating the envisaged artwork or (ii) re-using the protected material anyway, and facing the risk of a costly infringement claim. (153) Such constraints are particularly formidable when the art form at issue depends on concrete borrowing, such as ‘sampling’ (but also collage, and so on). Overall, it may stifle many a form of creation.

104.The advantages of the system laid down in the InfoSoc Directive are the ‘mirror image’ of those disadvantages. It rewards past creativity and/or investment by guaranteeing the rightholders of yesterday almost total control over the use of their intellectual property and a distinct possibility to exploit it to its full potential.

105.As stated in section B of the present Opinion, the legislature did seek to establish a ‘balance’ between rewarding the past and supporting the new. The existing exceptions and limitations to copyright and related rights, especially that of ‘quotation’, ‘parody’ and ‘pastiche’, support, in that regard, the creators of tomorrow over the rightholders of yesterday. In my view, there is little doubt that, although presented as optional by the legislature in Article 5(3) of the InfoSoc Directive, Member States are required to transpose them into their national law in order to comply with Article 13 of the Charter. (154)

106.Nevertheless, the issue often underlined by commentators (and which underpins the somewhat ‘creative’ construction of ‘pastiche’ suggested by Pelham and Others, the German Government and the Commission) is that such a system of broad exclusive rights and closed, exhaustively-listed exceptions and limitations is, by nature, particularly rigid.

107.As we saw, under the current exceptions and limitations, protected material may be freely reused only if it contributes to an overtly imitative artistic creation (‘pastiche’), as a ‘dialogic’ reference to the source work (‘quotation’) or as a humoristic or critical détournement (‘parody’). That system never permits the appropriation of such material, selected ‘merely’ for its aesthetic value, and its reuse in a new creation. That is so irrespective of (i) the extent and value (both creative and economic) of the material borrowed and (ii) the amount of input added by the user and, thus, the ‘creative intensity’ of that new creation. It seems rather obvious that the weight of the claim to intellectual property of the rightholder concerned, under Article 13 and/or Article 17(2) of the Charter, depends on the first parameter, while the weight of the claim to freedom of the arts of the new creator, under Article 13 of the Charter, depends on the second. As the examples given in point 32 above illustrate, there may be a great deal of innovation and cultural value associated with such reuse. (155) However, the current system does not leave room for such nuances.

108.In fact, that system treats indiscriminately, on the one hand, counterfeiting, plagiarism and the exaggerations of certain adepts of the ‘appropriation art’ (who borrow very extensively from existing works, while adding little input), (156) the products of which could significantly harm rightholders’ economic interests by substituting themselves for the source material, (157) and, on the other hand, artworks created by borrowing a little amount of protected material, or using it in a highly ‘transformative’ way, and which, for that reason, do not compete with that source and, thus, would not cause such harm. For instance, in the case in the main proceedings, the German courts have established that the creation and exploitation of ‘Nur mir’ had no adverse impact on the normal exploitation of ‘Metall auf Metall’. (158) Nevertheless, in the absence of an applicable exception or limitation, those economic considerations are simply ignored by the current rules. (159)

109.The crux of the issue is whether such a ‘balance’ meets the requirements of Article 52(1) of the Charter (and, thus, may be regarded as genuinely ‘fair’). At this stage, I wish to point out that, obviously, the EU legislature has a broad margin of discretion when it comes to balancing two sets of competing rights and interests both protected by the Charter. (160) Accordingly, there is more than one result which may be regarded as a ‘fair balance’ and be compatible with that provision. In that context, the legislature may well choose, in principle, to tilt the scales more in favour of rightholders, and to grant a ‘high level’ of protection to their intellectual property. Nevertheless, that margin of discretion cannot be unlimited either. Otherwise, the requirement of proportionally sensu stricto would become meaningless and, with it, the important fundamental right guarantee that it is designed to ensure. As Advocate General Saugmandsgaard Øe observed in his Opinion in Tele2 Sverige and Others, (161) that requirement ‘opens a debate about the values that must prevail in a democratic society and, ultimately, about what kind of society we wish to live in’.

110.An adequate standard of review should be adopted to reconcile that margin of discretion with the imperative of judicial control. Accordingly, in my view, the Court should be able to censure a measure adopted by the EU legislature, in such a context, where the ‘balance’ between fundamental rights in that measure is manifestly wrong. (162)

111.With respect to the system established in the InfoSoc Directive, there is, in my view, a distinction to be made. With respect to the related rights granted to producers of phonograms, films and broadcasts, as interpreted by the Court, that balance is manifestly wrong (1). By contrast, with respect to the copyright granted to authors, that balance is, generally speaking, in compliance with Article 52(1) of the Charter (2). Nevertheless, a certain evolution could be desirable de lege ferenda (3).

1.The imbalance of the related rights, as currently construed

112.With respect to the related rights, it seems clear to me that making the ‘recognisable’ reuse, in a new creation, of any extract, even a ‘very short’ one, of subject matters such as phonograms, fixations of films or broadcasts, selected ‘merely’ for their aesthetic properties, subject to the exclusive reproduction rights of the producers or broadcasters concerned does not ensure, to a manifest degree, a ‘fair balance’ between those stakeholders’ right to intellectual property under Article 17(2) of the Charter, on the one hand, and everyone’s right to freedom of the arts under Article 13 of the Charter, on the other. In fact, that is precisely what the BVerfG ruled, in the case in the main proceedings, under the basic rights guaranteed by the German constitution, (163) with respect to the reuse of ‘samples’. (164)

113.Indeed, in that balancing exercise, freedom of the arts under Article 13 of the Charter should carry significant weight. That is so because, as an emanation of freedom of expression, it ‘constitutes one of the essential foundations’ of a democratic society. Indeed, the right for everyone to take part in the cultural life of the community is ‘one of the basic conditions for [such a society’s] progress’. (165)

114.By contrast, the claim of producers and broadcasters under Article 17(2) of the Charter is less compelling. I recall that the right of intellectual property laid down in that provision must be considered in relation to its function in society. (166)

114.) In other words, the protection of the ‘property’ of the producer or broadcaster is not an end in itself. The exclusive related rights over phonograms, films and broadcasts should be considered in the light of their justification. In fact, as limitations on everyone’s freedom of the arts, those rights must not be given a wider scope than is required by that justification. (167)

115.In my view, the investment-protection rationale that justifies the related rights granted to producers and broadcasters, explained in point 28 above, irrespective of its merits, (168) cannot require, in the light of freedom of the arts, those related rights to cover the creative reuse of any ‘recognisable’ extract of phonograms, films or broadcasts.

116.The mere fact that producers and broadcasters may draw revenue from licensing such extracts is not, in itself, relevant. The related rights were designed to ensure that the sales of, and lawful transactions related to, those subject matters are not threatened by illegitimate copies, so that the producers and broadcasters can obtain satisfactory returns from them and redeem the investment they put into their production. (169) They were not designed to guarantee producers and broadcasters a possibility to collect the highest possible remuneration from their phonograms, films and broadcasts, through the licensing of any extract. (170)

117.Unlike ‘borrowing’ someone’s tangible property, not every single reproduction of extracts from a phonogram, film or broadcast diminishes its value and threatens the investment of the producer or broadcaster concerned. Those rightholders should only be protected against reproductions of parts of their subject matters, such as ‘samples’ of phonograms, that are sufficiently substantial (from a quantitative or qualitative point of view) to interfere with the opportunity that they have of receiving satisfactory returns on their investment, because those reproductions could be used to create a substitute product which could impact negatively on the sales of, or other lawful transactions relating to, those subject matters. (171)

118.For instance, with respect to phonograms, that would include long and/or distinctive samples integrating ‘hooks’ of famous songs. By contrast, the reuse of short and/or non-distinctive samples would not entail such a risk, irrespective of whether those samples are ‘recognisable to the ear’ through side-by-side listening. There is, thus, little, if any, justification for the interests of the rightholders to trump freedom of the arts in the second scenario. (172)

119.By contrast, such a construction significantly undermines the freedom of the arts, as it hinders contemporary art forms enabled by the digital revolution, based on the reuse of phonograms, fixation of films and broadcasts, such as ‘sampling’, despite the cultural value associated with them. Making every ‘recognisable’ reuse of any extract of phonograms, fixations of films or broadcasts subject to the prior control of rightholders also stands at odds with the very functioning and reality of the internet. Construed as such, those rights encroach on everyday communications and internet trends, such as memes and GIFs as well as the whole range of UGC discussed above. (173)

120.The contrary arguments do not, in my view, withstand scrutiny. The difficulties of clearing samples have already been examined above. The assertion, restated by CG before the Court, that there is no genuine hindrance to the arts because, since the related rights apply only to reproductions of the phonogram (or to the fixation of film, and so on) in itself, creators would always be free to recreate themselves the sounds (or the image) recorded (using musical instruments or whatever tools necessary), is unconvincing. In my view, that assertion negates the very essence of art forms residing, precisely, in the use of recorded music to create new music (or recorded audio-visual content to create new audio-visual content). It rests on the derogatory assumption that, for instance, in music, ‘samples’ of phonograms are used to save the labour, time and effort that it would take to recreate the underlying sound. In fact, often, ‘samples’ are used and combined because of the particular aesthetic results that this produces. It would not always be possible to achieve the same result by re-recording the sound included in a record. Thus, one is not always (from an artistic point of view) a substitute of the other. Furthermore, in many situations, ‘sampling’ involves more time and effort than the independent production of an alike sound. ‘Samplers’ must listen to a wide range of music, choose what they think will work together, and then process it. It can be laborious. (174)

121.I am well aware that the exclusion, in the judgment in Pelham I, of ‘samples’ which are modified to the point of being ‘unrecognisable to the ear’ from the reproduction right of the phonogram producers was already presented by the Court as contributing to ensuring a ‘fair balance’ between the freedom of the arts and the right to intellectual property of the producer.

122.However, first, saying that ‘sampling’ is free where ‘unrecognisable’ also negates a part of the essence of art forms based on creating music through the use of recordings selected for their aesthetic properties: if the ‘sample’ has to be distorted to the point of non-recognition, why use it in the first place? (175) More importantly, and with all due respect, the Court did not thoroughly weigh the rights and interests at issue. (176) Although the Court asserted that its interpretation leaves some room freely to reuse samples (through distortion), (177) it did not explain (i) how any ‘recognisable’ sample, even a very short one, could interfere with the producer’s opportunity to receive satisfactory returns on his or her investment, and (ii) why the economic interests of the producer should outweigh the socially fundamental freedom of the arts even with respect to short extracts.

123.There are, in my view, several ways to remedy the imbalance described in the previous points, when taking a holistic approach to the system laid down in the InfoSoc Directive.

124.On the one hand, the Court could go further than the judgment in Pelham I and adopt, instead, a teleological interpretation of the rather open concept of ‘reproduction in part’ within the meaning of Article 2(c) to (e) of the InfoSoc Directive, (178) duly taking into account the rationale for the right laid down in that provision, as covering only extracts which could interfere with the opportunity that the producer or broadcaster has of receiving satisfactory returns on his or her investment. Adopting such a de minimis rule would ‘rebalance’ the related rights and, thus, ensure their compatibility with Article 52(1) of the Charter.

125.On the other hand, the necessary ‘rebalance’ would also be achieved if the EU legislature modified the InfoSoc Directive expressly to exclude short extracts from the scope of Article 2(c) to (e) thereof (179) or to include an exception dedicated to the reuse of protected material, including extracts of phonograms, films and broadcasts in a new artistic creation, subject (inter alia) to the three-step test laid down in Article 5(5) of that directive (which, I recall, includes a requirement that the use does not ‘conflict with a normal exploitation of the work or other [subject matter]’), as discussed in section 3 below.

126.By contrast, the prohibition on taking ‘original’ parts of protected works, even small ones, for the purposes of a new creation, subject to the ‘quotation’, ‘parody’ and ‘pastiche’ exceptions, satisfies, in my view, the requirements of proportionality sensu stricto.

127.The claim to intellectual property of the author, under Article 17(2) of the Charter, carries significantly more weight in the balance than that of producers and broadcasters, discussed in the previous section. In fact, the function of the author’s intellectual property over his or her ‘works’ is to protect his or her own right to freedom of the arts under Article 13 of the Charter. It is not merely about protecting an economic investment. There are other, more personal and fundamental reasons connecting an author to the fruits of his or her creation, and explaining why he or she would legitimately wish to have a say on its reuse by other creators. (180)

128.Hence, cases of reuse of a work in a new creation bring face to face, in fact, two creators, with two opposing claims to freedom of the arts, making the reconciliation of those competing interests a particularly complex exercise. This justifies granting, in that regard, a particularly broad margin of discretion to the EU legislature.

129.In my view, while the precise weight of their respective claim could vary, as stated in point 107 above, in each case, the abstract ‘balance’ established in the InfoSoc Directive is generally ‘fair’. The scope of the reproduction right granted to authors over their ‘works’, under Article 2(a) of the InfoSoc Directive, while it does have its own impact on art forms based on reuse and everyday communication on the internet, (181) does not exceed its justification, since it is limited to the copying of ‘original’ parts of the works, leaving everyone free to reuse elements which are not the author’s own creation, as explained in point 26 above. Furthermore, the exceptions for ‘quotation’, ‘parody’ and ‘pastiche’ leave room for referential/dialogical or imitative use of existing works, or even for their subversion for humoristic or satirical purposes. (182) This does not mean that the ‘balance’ achieved in the current system is the only conceivable one, as will be explained in the next section.

130.It is often observed that the ultimate objective of EU literary and artistic property rules is to foster the creation, production and dissemination of information, knowledge and culture. (183) Logically, the exclusive rights and exceptions and limitations should be designed with that ultimate goal in mind.

131.In that regard, it could be desirable to increase the flexibility of that system with respect to artistic (or even communicative) reuse of protected material. It would be better aligned with the needs of various contemporary art movements, such as hip hop. It is questionable, to say the least, whether that genre would have thrived as it did in the 1980s if the exclusive rights granted to authors and producers, as provided in the InfoSoc Directive, had been applied to the letter. The same goes for many of the historical examples given in point 32 above. Hindering the development of new art forms is hardly a socially desirable outcome. That system could also better align with the functioning and trends of the internet. UGC is an important social phenomenon in that regard. Yet, the system fails, as it stands, to offer dedicated solutions for it. Many valuable derivative expressions exist on the internet in some sort of a grey zone, mostly due to some implied tolerance of the rightholders (or actual inability to control all of them). Arguably, those forms of creativity should also be supported. This is not only a question of social participation, but also one of artistic diversity. Ultimately, also, the risk is that that system could be rejected by creators and the public alike if too rigid rules are not adapted to a changing environment.

132.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. (186)

V.Conclusion

133.In the light of all the foregoing considerations, I propose that the Court of Justice should answer the questions referred by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:

(1)Article 5(3)(k) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

(2)must be interpreted as meaning that the concept of ‘pastiche’, within the meaning of that provision, covers 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. The use of protected elements from works or other subject matters, including ‘samples’ of phonograms, falls under the corresponding exception where it results in an artistic creation presenting those essential characteristics.

(2)Article 5(3)(k) of Directive 2001/29

must be interpreted as meaning that the use of a protected work or other subject matter must be regarded as being ‘for the purpose of … pastiche’ within the meaning of that provision where the ‘pastiche’ character of that use is recognisable by a person familiar with the protected material reused and who has the intellectual understanding required to perceive the ‘pastiche’.

—

1Original language: English.

2See, for a definition of ‘sampling’, Opinion of Advocate General Szpunar in Pelham and Others (C‑476/17, EU:C:2018:1002, point 1; ‘Opinion of Advocate General Szpunar in Pelham I’): ‘sampling is the process of taking, by means of electronic equipment, a portion or sample … of a phonogram for the purpose of using it as an element in a new composition in another phonogram.’

3A ‘phonogram’, in copyright law, is understood as any exclusively aural ‘fixation’ of sounds (that is to say, sound recording) (see Article 3 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961 (‘the Rome Convention’), and Article 2(b) of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996 and approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) (‘the WPPT 1996’).

4Judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624; ‘judgment in Pelham I’).

5Directive of the European Parliament and of the Council of 22 May 2001 (OJ 2001 L 167, p. 10).

6Directive of the European Parliament and of the Council of 17 April 2019 amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92).

7While Article 17(7)(b) of the CDSM Directive is not applicable to the present case (as it concerns neither the right of communication to the public nor the reuse of protected material by users of ‘online content-sharing services’), that provision and Article 5(3)(k) of the InfoSoc Directive should be construed uniformly (see, by analogy, judgment of 31 May 2016, Reha Training (C‑117/15, EU:C:2016:379, paragraphs 28 to 34).

8See Article 5 of the Grundgesetz (Basic law).

9Pursuant to that provision ‘an independent work created in the free use of the work of another person may be published and exploited without the consent of the author of the work used’. The BVerfG considered that it could apply by analogy to the reuse of phonograms.

10Admittedly, the members of Kraftwerk primarily rely on the related rights of phonogram producers. Nevertheless, they also rely on copyright on a subsidiary basis. In any case, the ‘pastiche’ exception laid down in Article 5(3)(k) of the InfoSoc Directive applies transversally to copyright and all the related rights (see point 36 below). Hence, the questions referred on that exception are not limited to uses of phonograms but also cover uses of other subject matters, such as works. Thus, both types of rights should be considered in the analysis.

11Although the issue concerns the arts in general, since the case in the main proceedings relates to music, I will focus my reasoning on that field, while occasionally venturing into other domains.

12Freedom of the arts is recognised as an autonomous fundamental right, at the national level, in various Member States, including Germany (see Article 5 of the Grundgesetz (Basic law)), and in International law (see Article 27 of the Universal Declaration of Human Rights (‘UDHR’); Article 15(1)(a) of the UN International Covenant on Economic, Social and Cultural Rights (‘ICESCR’); and Article 19(2) of the UN International Covenant on Civil and Political Rights).

13Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). The European Court of Human Rights (‘the ECtHR’) has held that freedom of expression, as guaranteed under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), includes ‘freedom of artistic expression’ (ECtHR, 24 May 1988, Müller and Others v. Switzerland, CE:ECHR:1988:0524JUD001073784, § 27). The distinction between the two being whether the expression is ‘artistic’ or not.

14See, to that effect, judgment in Pelham I (paragraph 34); ECtHR, 24 May 1988, Müller and Others v. Switzerland, CE:ECHR:1988:0524JUD001073784, § 27; and ECtHR, 8 July 1999, Karataş v. Turkey, CE:ECHR:1999:0708JUD002316894, § 49.

15As the use of the general term ‘the arts’ in Article 13 makes clear, the freedom in question has a broad scope, covering all forms of artistic expression, irrespective of the medium (literature, music, visual arts, and so on) (see Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights – A Commentary, Hart Publishing, Oxford, 2021, pp. 417 to 419).

16See Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 July 1979 (‘the Berne Convention’); World Intellectual Property Organization (WIPO) Copyright Treaty, adopted in Geneva on 20 December 1996, approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) (‘the WCT’); Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (‘the TRIPS Agreement’).

17See, on the fact that Article 10 ECHR (and, by extension, Article 13 of the Charter) imposes on public authorities not only ‘negative obligations’ (no interference), but also ‘positive’ ones (take measures to guarantee the effective enjoyment of freedom of expression), ECtHR, 6 May 2003, Appleby v. the United Kingdom, CE:ECHR:2003:0506JUD004430698, § 39. In fact, artistic freedom and copyright protection are often envisioned together in international law instruments (see Article 27(1) and (2) UDHR, and Article 15(a) and (c) ICESCR).

18And a set of ‘moral rights’ (see Article 6bis of the Berne Convention), which are not covered by the InfoSoc Directive. See, further, footnote 54 below.

19That is to say ‘reflect the personality of their author’ (see, to that effect, judgments of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraph 37; ‘judgment in Infopaq’). Artistic merits are, by contrast, irrelevant. Indeed, judges cannot decide what is ‘good’ or ‘bad’ art (for that is an inherently subjective question).

20See also Article 9 of the Berne Convention.

21See recitals 9 to 11 and 14 of the InfoSoc Directive, as well as Opinion of Advocate General Szpunar in Pelham I (point 83).

22Like the freedom of expression under Article 11 of the Charter, given the broad formulation of Article 13 of the Charter, freedom of the arts does not only preclude censorship on political or moral grounds. Restricting the type of material that artists can use also entails a ‘constraint’ on the arts within the meaning of Article 13.

23See Article 2 of the WCT and Article 9(2) of the TRIPS Agreement.

24See judgment in Infopaq (paragraphs 38, 39 and 48).

25While a particular arrangement of such elements in a composition may be ‘original’ and warrant copyright protection, it does not make the composer the exclusive owner of each of them individually, for they are not ‘his creation’, but a shared vocabulary, used by countless creators. See Wilson, L., ‘The case for common property in musical objects’, Vanderbilt Journal of Entertainment & Technology Law, Vol. 26, No°3, 2024, pp. 413 to 460.

26See, to that effect, judgment in Infopaq (paragraphs 38, 39 and 48), and judgment of 1 December 2011, Painer (C‑145/10, EU:C:2011:798, paragraphs 36, 40, 41, 42 and 95 to 98).

27There is no threshold, such a number of notes that may be freely copied, beyond which the reproduction right is triggered. Whether copyright subsists in the elements borrowed is assessed not quantitatively, but qualitatively.

28The test of infringement consists in comparing the formative elements of the existing work and of the new creation. For a musical work, it is a phonetic comparison. An Infringement is found where some of the original features of the first are perceptible (to the sense) in the second. Slight alterations, such as changes of key or speed, are irrelevant. However, where the alterations are such as to make the original elements of the first work not perceptible anymore in the other subject matter, there is no ‘reproduction’ within the meaning of Article 2(a) of the InfoSoc Directive (see, to that effect, judgment of 9 March 2021, VG Bild-Kunst (C‑392/19, EU:C:2021:181, paragraph 25).

29Subject to the exceptions and limitations that will be discussed in section B below.

30I leave aside (as I cannot examine every single potential issue in a single Opinion) the reproduction right granted to performers over fixations of their performances under Article 2(b) of the InfoSoc Directive, which has a different rationale.

31See also Article 10 of the Rome Convention; Article 11 of the WPPT 1996; and Article 14(2) of the TRIPS Agreement.

32For instance, where a musical work is recorded, in addition to the copyright on that work, which benefits the author, the recording is protected, in itself, under the copyright-related right laid down in Article 2(c) of the InfoSoc Directive, which is granted to the producer.

33See recital 10 of the InfoSoc Directive.

34On the fact that ‘sampling’ is a form of artistic expression protected under Article 13 of the Charter, see judgment in Pelham I (paragraph 35). The same goes, by analogy, for the reuse of film footage, or a broadcast, to create an artwork.

35Subject to the exception and limitation that will be discussed in section B below.

36See Grisse, K. and Kaiser, C., ‘On the significance of (un)recognisability for the reproduction right in European copyright law: Pelham GmbH v Hutter (C-476/17)’, European Intellectual Property Review, Vol. 44, No 2, 2022, pp. 78 to 90, p. 82.

37There is considerable debate as to what the Court meant by that (see, inter alia, Grisse, K. and Kaiser, C., footnote 36, op. cit., p. 82). In my view, by ‘recognisable’, the Court meant that the ‘sample’ is assignable to the original phonogram, through phonetic comparison (see, by analogy, footnote 28 above). The terms ‘to the ear’ are (clearly) intended to mean that the ‘sample’ must be perceptible by humans. Those only detectable by robots and machines are not covered. The difficult question to decide is whose ear is relevant. An expert hip hop producer will notice more samples than a casual listener. To solve the issue, courts could resort to legal fictions (akin to the ‘average consumer’ of trademark law). In fact, the referring court created, when applying the reply of the Court in the judgment in Pelham I, the fiction of the ‘average music listener’ for that purpose. That court considered that the ‘sample’ at issue, although slightly modified, remains ‘recognisable to the ear’, by such a listener, in ‘Nur mir’.

38Indeed, only where the extract of protected subject matter taken has been modified to the point of being ‘unrecognisable’ in the new creation is the relevant reproduction right not triggered (see judgment in Pelham I (paragraphs 29 to 31)). See, by analogy, footnote 28 above.

39Quotation attributed to Russian composer I. Stravinsky.

40Opinion of Advocate General Szpunar in Cofemel (C‑683/17, EU:C:2019:363, point 55).

41See point 66 below.

42However, it is in no way limited to that field. To give but a few examples in the visual arts, paintings such as Monnet’s Déjeuner sur l’herbe or van Gogh’s The Sheepshearer (after Millet) are composed of recycled material, creatively reinterpreted. The ‘appropriation art’ movement, started in the 20th century, and including Dada, pop art, conceptual art (and so on), by artists such as Bouchet, Warhol or Koons, also gave rise to (quite extreme) instances in that regard (see Williams, T., ‘Appropriation in art’, in Marter, J. (ed), The Grove Encyclopedia of American Art, Oxford University Press, Oxford, 2011).

43For instance, Bach’s three organ concertos, BWV 593, 594 and 596, are derived from Vivaldi’s Concerto for Two Violins and Basso Continuo, Op. 3 No 8 (RV 522), Vivaldi’s Concerto for Violin and Basso Continuo, Op. 7 No 5 (RV 208), and his Concerto for Two Violins and Cello, Op. 3 No 11 (RV 565). Mozart’s 12 Variations on ‘Je suis Lindor’ in E-flat major, K. 354/299a are built on a famous aria from Le barbier de Séville by Baudron.

44For instance, in the score he composed for the 1944 movie Passage to Marseille, Steiner reused several bars of the French hymn ‘La Marseillaise’. Ives’s Piano Sonata No 2, Concord, Mass features recurrently the opening four-note motif from Beethoven’s Symphony No 5, Op. 67.

45‘Sampling’ is a complex matter to assess in the abstract. ‘Samples’ may take many forms (long, short, distinctive, non-distinctive). They may be played once or looped. Sometimes they are faithfully reproduced, other times altered and adapted. Furthermore, ‘sampling’ is not limited to one musical genre. Certainly, it is associated with hip hop, in part for historical reasons. When emerging as a genre in the 70s in the Bronx (New York, United States), DJs would loop, using two copies of the same record, played on two turntables, certain parts of a song to create a continuous ‘beat’ on which Masters of Ceremonies (MCs) could rap. Later on, digital samplers allowed hip hop producers to scour the phonograms of yesterday to create such a ‘beat’ by copying extracts from them (see Katz, M., ‘Capturing sound: how technology has changed music’, University of California Press, revised edition, 2010, pp. 124 to 176).

46The concept of ‘intertextuality’, initially developed in literary theory, but extended to the other fields of the arts, is the idea that no work can exist as a self-sufficient whole, because (i) any work is infused with external references, quotations and influences, and (ii) the reception of that work is always informed by all the other works that the viewer, listener or reader brings to it.

47See further, Olufunmilayo, A.B., ‘From J.C. Bach to hip hop – musical borrowing, copyright and cultural context’, North Carolina Law Review, Vol. 84, 2006, pp. 547 to 645; Boyle, J., Ap Siôn, P. and Redhead, M., ‘Musical Borrowing and Quotation in the Twentieth and Twenty first Centuries’, Contemporary Music Review, Vol. 33, No 2, pp. 125 to 127 ; and Myung-Ji Lee, B., The art of borrowing – quotations and allusions in western music, 2016.

48‘Remixing’ designates the process of combining items of existing content in new ways, and remixes are the result of that process (see Chandler, D. and Munday, R., A Dictionary of Social Media, Oxford University Press, Oxford, 2016; entry: ‘remixing’).

49The term ‘mashup’ designates, broadly speaking, the process of creating something new by combining content from multiple existing sources, and any product of such a process (see Chandler, D. and Munday, R., footnote 48, op. cit.; entry: ‘mashup’).

A ‘meme’ consists in a single picture, sometimes (but not always) taken from a famous film or a broadcast, with a humorous caption which is very widely shared online (see Chandler, D. and Munday, R., footnote 48, op. cit.; entry: ‘meme (internet meme)’).

—

51GIFs are composed of a few frames of audio-visual content, depicting someone or something, and routinely used, on social medias, to express a reaction to a message or a comment (and so on) (see https://www.merriam-webster.com/dictionary/reaction%20GIF).

52For instance, there generally was no copyright on musical works before the 18th century. The related right of phonogram producers was only created in the 1960s, and those on fixation of films and broadcasts in the 1990s (see Hugenholtz, P.B., ‘Neighbouring rights are obsolete’, International Review of Intellectual Property and Competition Law, Vol. 50, No 8, 2019, pp. 1006 to 1011). Furthermore, the scope and the duration of those various rights has been gradually extended.

53See United States District Court for the Southern District of New York, 17 December 1991, Grand Upright Music v. Warner Bros Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991).

54An additional burden is created by the ‘moral rights’ reserved to authors over their works. In that regard, Article 6bis of the Berne convention grants the author, first, the right to claim authorship of the work (‘right of attribution’). That will usually entail a requirement to indicate the name of the author where a work is reproduced in a new creation. Secondly, and more problematically, Article 6bis grants the author the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, that work, which would be ‘prejudicial to his honour or reputation’ (‘right to integrity’). Some Member States law, such as French copyright law, go further as they give the author the right to prohibit any material modification to his or her work, even where it would not be so ‘prejudicial’. That is, obviously, a tremendous obstacle to creative reuse of existing works.

55See, to that effect, Article 17(4) of the CDSM Directive. For a full explanation of the system of the filtering obligations laid down therein, see Opinion of Advocate General Saugmandsgaard Øe in Poland v Parliament and Council (C‑401/19, EU:C:2021:613, points 48 to 69).

56See, inter alia, Cabay, J. and Lambrecht, M., ‘Remix prohibited – how rigid EU copyright laws inhibit creativity’, Journal of Intellectual Property Law & Practice, Vol. 10, No 5, 2015, pp. 359 to 377; Senftleben, M., ‘Flexibility grave – partial reproduction focus and closed system fetishism in CJEU, Pelham’, International Review of Intellectual Property and Competition Law, 2020, pp. 751 to 769; and Westkamp, G., ‘Two constitutional cultures, technological enforcement and user creativity – the impending collapse of the EU copyright regime?’, International Review of Intellectual Property and Competition Law, Vol. 53, 2022, pp. 62 to 93.

57Indeed, apart from the exception provided for in Article 5(1) of the InfoSoc Directive (irrelevant for the current discussion), Member States are, in principle, free to transpose the other exceptions and limitations into their national law (see, nevertheless, point 105 below).

58See recitals 3 and 31 of the InfoSoc Directive.

59See recital 32 of the InfoSoc Directive.

60See judgment in Pelham I (paragraphs 63 to 65) and points 12 to 15 above. Similar provisions existed in the law of various Member States (see Hui, A. and Döhl, F., ‘Collateral damage: reuse in the arts and the new role of quotation provisions in countries with free use provisions after the ECJ's Pelham, Funke Medien and Spiegel Online judgments’, International Review of Intellectual Property and Competition Law, Vol. 52, No 7, pp. 852 to 892.

61Judgment of 29 July 2019 (C‑469/17, EU:C:2019:623, paragraphs 55 to 64; ‘judgment in Funke Medien’).

62Judgment of 29 July 2019 (C‑516/17, EU:C:2019:625, paragraphs 40 to 49; ‘judgment in Spiegel Online’).

63Judgment of 3 September 2014, Deckmyn and Vrijheidsfonds (C‑201/13, EU:C:2014:2132, paragraph 20; ‘judgment in Deckmyn’).

64See, with respect to France, point 52 below. See, for a comparative view of the laws of the Member States, Mezei, P., Jütte, B.J., Sganga, C. and Pascault, L., ‘Oops, I sampled again … the meaning of “pastiche” as an autonomous concept under EU copyright law’, International Review of Intellectual Property and Competition Law, Vol. 55, 2024, pp. 1225 to 1256.

65By contrast, ‘parodies and ‘caricatures’ were permitted under the ‘free use’ clause laid down in Paragraph 24(1) of the UrhG (see Stieper, M., ‘Es ist nicht alles Kunst, was glänzt – Versuch einer Eingrenzung des Pastichebegriffs in § 51a UrhG’, GRUR, 2023, pp. 1660 to 1665).

66For uses outside those services, the ‘pastiche’ exception remains optional under Article 5(3)(k) of the InfoSoc Directive (see, nevertheless, point 105 below).

67The German legislature repealed, in the same move, the ‘free use’ clause laid down in Paragraph 24(1) of that law (in reaction to the judgment in Pelham I) (see point 15 above).

68Indeed, Article 51a is not limited to the uses covered by Article 17 of the CDSM Directive.

69See Deutscher Bundestag Drucksache 19/27426, 19. Wahlperiode 09.03.2021, Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Anpassung des Urheberrechts an die Erfordernisse des digitalen Binnenmarktes. A similar understanding of the ‘pastiche’ exception has apparently been endorsed by the Austrian, Spanish and Hungarian legislatures (see, for a comparative analysis, Mezei, P., Jütte, B.J., Sganga, C. and Pascault, L., footnote 64, op. cit.).

70See point 16 above.

71See, by analogy, with respect to ‘parody’, judgment in Deckmyn (paragraphs 14 and 15). That interpretation is not called into question by the optional nature of Article 5(3)(k) of the InfoSoc Directive. While Member States are, in principle, free to transpose the relevant exception, they are not free to determine its scope in a non-harmonised manner (Ibid., paragraph 16).

72See, inter alia, judgment in Deckmyn (paragraph 19 and the case-law cited).

73See, for the same view, Pollaud-Dulian, F., ‘Le pastiche en quête de sens’, Recueil Dalloz, Vol. 23, 2024, p. 1138 ; and Spina Ali, G., ‘Is EU copyright law an obstacle to internet memes?’, European Intellectual Property Review, Vol. 45, No 12, 2023, pp. 714 to 724, specifically p. 721.

74As explained by Pelham and Others, the fact that Nur mir belongs to a different musical genre than ‘Metall auf Metall’ was regarded as a sufficient ‘confrontation’ by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg).

75Such a ‘dialogue’ is, by contrast, required under the ‘quotation’ exception laid down in Article 5(3)(d) of the InfoSoc Directive (see point 88 below).

76At least, that is what I could infer from the explanations given by Pelham and Others, the German Government and the Commission concerning the meaning of ‘artistic confrontation’, which were remarkably vague. See, for the same definition, Hudson, E., ‘The pastiche exception in copyright law – a case of mashed-up drafting?’, Intellectual Property Quarterly, No 4, 2017, pp. 346 to 368; Kreutzer, T., The pastiche in copyright law, Gesellschaft für Freiheitsrechte, 2022, pp. 14 to 22; Opinion on CG and YN v Pelham GmbH and Others, Case C‑590/23 (Pelham II), European Copyright Society, 6 November 2024.

77See, for the same view, European Commission, Copyright Reform: Questions and Answers, last updated on 22 February 2022 (https://digital-strategy.ec.europa.eu/en/faqs/copyright-reform-questions-and-answers) Q ‘Does the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Are memes and GIFs … banned?’ A ‘No. On the contrary, uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) is specifically allowed. ….’ (emphasis added).

78See, further, section C below.

79See, containing exclusively, or at least as a main entry, that definition, in English: the Collins English Dictionary; the Oxford Dictionary of English; the Merriam-Webster English Dictionary; the Shorter Oxford English Dictionary; in Spanish: Real Academia Española, Diccionario de la Lengua Española; in German: Duden; Brockhaus ; in French: Le Littré; Dictionnaire de l’Académie Française; Le Petit Robert, Larousse; Le Robert. See, for studies by art experts, Hoesterey, I., Pastiche – cultural memory in art, film, literature, Indiana University Press, 2001, pp. 1 to 10; Dyer, R., Pastiche, Routledge, 2007, pp. 28 to 40. See, for legal commentators, Döhl, F., ‘Pastiche zwischen Generalklausel und Auffangtatbestand’, Zeitschrift für geistiges Eigentum, No 4, 2020, pp. 380 to 442.

80See Hoesterey, I., footnote 79, op. cit., pp. 1 to 4.

81Ibid.

82For instance, in his 1919 novel Pastiches et Mélanges, Proust narrates a petty crime in the style of nine authors, including Balzac and Flaubert. Humour resides in the ‘mismatch’ consisting in having such an anecdote told with the solemn words of those authors (see Hoesterey, I., footnote 79, op. cit., pp. 1, 4 to 7 and 80 to 94).

83Vivant, M. and Bruguière, J.-M., Droit d’auteur et droits voisins, Dalloz, Paris, 2015, pp. 415 to 416.

84See Opinion of Advocate General Szpunar in Pelham I (footnote 30).

85The ‘pastiche’ itself draws attention to the fact that it contains imitative material. Recognising that the ‘pastiche’ refers to something that precedes it is crucial to its identity (see Dyer, R., footnote 79, op. cit.).

86Sometimes, composing a work in the style of another successful one hides a less glorious intent: that of attracting some of that success to oneself.

87See Hoesterey, I., footnote 79, op. cit., pp. 8 and 9; Jacques, S., The parody exception in copyright law, Oxford University Press, Oxford, 2019, p. 10; and Döhl, F., footnote 79, op. cit., pp. 440 to 443.

88See Bell, C., Premonitions of the past – an analysis of pastiche in the films of Quentin Tarantino, Digitized Theses, 2011. For instance, Tarantino’s 1997 film Jackie Brown is a ‘pastiche’ of 1970s, female-lead ‘blaxploitation’ films such as Foxy Brown. See, for other examples of ‘pastiches’ in cinema, Hoesterey, I, footnote 79, op. cit., pp. 47 to 52; Dyer, R., footnote 79, op. cit.; and ‘pastiche’ in Kuhn, A. and Westwell, G., A Dictionary of Film Studies, 2nd Ed., Oxford University Press, Oxford, 2020.

89See DJ Louie XIV, ‘Pharrell, Bruno Mars and the age of pastiche pop – are chart-topping retro-style hits honoring the past or simply retreading it?’, Medium, 4 May 2015 (https://medium.com/cuepoint/pharrell-bruno-mars-and-the-age-of-pastiche-pop-cdeaf98aff54). An example from classical music would be Liszt ‘pastiching’ Bach in Variationen über das Motiv von Bach, S.180.

90Blade Runner blends together, on the one hand, the futuristic architecture, aesthetics, direction and themes of Fritz Lang’s 1927 avant garde science-fiction movie Metropolis and, on the other hand, tropes of the film noir ‘genre’, grafting all those elements onto a post-apocalyptic Los Angeles cityscape (see Kuhn, A. and Westwell, G., footnote 88, op. cit.). Bohemian Rhapsody blends tropes, motifs, structures and harmonies of styles ranging from classical music to opera and metal.

91See, containing such understanding as an alternative, second entry, the Collins English Dictionary; the Oxford Dictionary of English; the Merriam-Webster English Dictionary; the Shorter Oxford English Dictionary; in French: Le Littré, Le Petit Robert. See, also, Hoesterey, I., footnote 79, op. cit., pp. 10 to 16; Dyer, R., footnote 79, op. cit., pp. 9 to 21; and Ortland, E., ‘Pastiche im europäischen Sprachgebrauch und im Urheberrecht’, Zeitschrift für Geistiges Eigentum, Vol. 14, No 1, 2022, pp. 3, 17 to 19.

92The term ‘cento’ refers to poems, from the Greek antiquity, made out of individual verses taken from well-known poets such as Homer and Virgil (see Hoesterey, I., footnote 79, op. cit., pp. 9, 11 and 80). ‘Collage’ is, in visual arts, a process, developed in the wake of Braque’s and Picasso’s papiers collés around 1910, whereby visuals (newspaper cut-outs, cigarette-pack paper, and so on) were pasted into cubist compositions (Ibid. p. 11). The term ‘found footage’ designates a film consisting in a recombination of pre-existing film footages appropriated by the filmmaker, such as Michel Hazanavicius and Dominique Mézerette’s movie La Classe américaine (see ‘found footage’ in Kuhn, A. and Westwell, G., footnote 88, op. cit.).

93See ‘Pastiche’ and ‘Pasticcio’ in Kennedy, J., Kennedy, M. and Rutherford-Johnson, T., The Oxford Dictionary of Music, 6th Ed., Oxford University Press, Oxford, 2012.

94See, for the same view, Döhl, F., footnote 79, op. cit., pp. 390, 425 and 426 and 429 to 436.

95It is, indeed, hard to believe that the EU legislature could have had the 18th century ‘pasticcio opera’ genre in mind when drafting the InfoSoc Directive (Ibid., p. 418).

96A comparative analysis of the language versions of the InfoSoc Directive does not bring clarity either, as (i) the vast majority of those versions use either the French term ‘pastiche’ (DA, DE, EN, ES, FR, IT, NL, PT) or an almost identical foreign term (ET ‘pastišis’; FI ‘pastississa’; HR ‘pastiša’; LT ‘pastišui’; MT ‘pastiċċ’; PL ‘pastiszu’; RO ‘pastișelor’; SL ‘pastiša’; SV ‘pastischsyfte’) and (ii) the few diverging language versions give contradictory indications, as some use terms that can be translated as ‘imitation’ (BG ‘имитация’; EL ‘μίμηση’; HU ‘utánzat’) or even ‘stylistic imitation’ (LV ‘stilizācijās’), while others use terms evoking rather a ‘patchwork’ of parts taken from previous works (CS, SK: ‘koláže’).

97Admittedly, Article 5(3)(k) finds its origin in a proposal of the French delegation in the Council of the European Union, evidently inspired by French law (see Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information Society (SEC/2000/1734 final, section 3.2.4). Nevertheless, the origin of a provision of EU law cannot, in itself, dictate its interpretation. Once integrated into an instrument of EU law, the term ‘pastiche’ became an autonomous concept, and the Court should not draw its definition from one national tradition.

98Obviously, there may be some overlap between the concepts of ‘parody’ and ‘pastiche’. As stated above, some ‘pastiches’, so defined, may have a humoristic or critical purpose.

99See, inter alia, judgment in Deckmyn (paragraph 21). However, in practice, a ‘pastiche’ will usually be ‘original’, as that threshold is low. I also wish to underline that, as is usually the case in copyright law (see footnote 19 above), the artistic merit of the ‘pastiche’ (whether it is good or bad) is plainly irrelevant for the purposes of the application of the corresponding exception.

100See, inter alia, judgment in Deckmyn (paragraph 23 and the case-law cited)).

101Only the concrete expression of that ‘style’ in a given work is so protected.

102See, on the idea/expression dichotomy and the distinction between commonplace and ‘original’ elements, point 26 above.

103See Andersen v Stability AI, and Getty Images v Stability AI, currently pending before the High Court (United Kingdom).

104Inter alia, in 2018, the successor in law of the co-writer of Marvin Gaye’s 1973 song ‘Let’s Get It on’ sued Ed Sheeran for having ‘stolen’ the combination of the chord progression and harmonic rhythm of that song in his own song ‘Thinking Out Loud’. In both cases the infringement claims were eventually dismissed, on the ground that the elements borrowed were too commonplace to warrant copyright protection (see United States Court of Appeals For the Second Circuit, 1 November 2024, Structured Asset Sales, LLC v. Sheeran, No. 23-905 (2d Cir. 2024)). Nevertheless, such lawsuits create legal uncertainty among musicians wishing to imitate distinctive styles. In the European Union, the ‘pastiche’ exception, as defined above, would strengthen the legal position of creators in that regard.

105See Döhl, F., footnote 79, op. cit., pp. 427 to 429. For instance, in 2013, the estate of Marvin Gaye and its music producer accused Pharrell Williams and Robin Thicke of having ‘stolen’, in their song ‘Blurred lines’, ‘signature phrases, hooks, bass melodies, [and] word painting’ from Gaye’s song ‘Got to give it up’. The US courts involved ruled that ‘Blurred lines’ infringed ‘Got to give it up’, because the combination of stylistic elements borrowed was ‘original’ (see United States Court of Appeals for the Ninth Circuit, 21 March 2018, Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018)). In the European Union, the ‘pastiche’ exception could have avoided that outcome, as ‘Blurred lines’ could be regarded as a ‘pastiche’ of ‘Got to give it up’.

106Subject to the three-step test laid down in Article 5(5) of the InfoSoc Directive. In that regard, that test could be crucial, in particular, when assessing the permissibility of certain imitative artworks generated by AI through the scanning of protected works and other subject matters.

107See, by analogy, with respect to the ‘quotation’ exception laid down in Article 5(3)(d) of the InfoSoc Directive, judgment in Pelham I (paragraph 68).

108By analogy, Rochberg’s Nach Bach imitates the Baroque style not only through the adoption of certain distinctive forms, but also through the direct reproduction of some ‘original’ parts of Bach’s works (see Myung-Ji Lee, B., footnote 47, op. cit., p. 56).

109See Döhl, F., footnote 79, op. cit., pp. 424 and 425.

110It would also render redundant the ‘quotation’ exception laid down in Article 5(3)(d) of the InfoSoc Directive, since any content that reuses third-party material, including as a ‘quotation’, could be regarded as a ‘pastiche’.

111I observe that some German courts and academic commentators, while endorsing the definition of ‘pastiche’ provided by Pelham and Others, the German Government and the Commission, limit its scope by interpreting the requirement of ‘artistic confrontation’ as implying that the ‘pastiche’ must be ‘antithematic’, that is to say, critical of the source material (see, for instance, Landgericht Berlin (Regional Court, Berlin, Germany), 2 November 2021, The Unknowable, ECLI:DE/LGBE:2021:1102:15O551.19.00) or, at least, ‘enter into dialogue’ with that material (see Stieper, M., footnote 65, op. cit., p. 1662). That alternative construction of ‘artistic confrontation’ is also supported by CG, seemingly on a subsidiary basis. Under that understanding, the ‘pastiche’ exception would cover a narrower subset of creative reuses, excluding much UGC and most cases of ‘sampling’, where such dialogue or antithematic confrontation cannot be identified. However, I fail to see the usefulness of that construction. A requirement that the use be ‘antithematic’ conflates ‘parody’ and ‘pastiche’ (see point 93 below). Requiring a ‘dialogue’, in turn, conflates ‘pastiche’ with ‘quotation’ (see point 88 below).

112The ‘fair use’ clause, laid down in section 107 of the Copyright Law of the United States as an exception to copyright, freely permits any use of protected material regarded as ‘fair’ in the light of factors such as ‘the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes’, ‘the nature of the copyrighted work’, ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’ and ‘the effect of the use upon the potential market for or value of the copyrighted work’.

113Notably, in the system currently laid down in Article 5 of the InfoSoc Directive, the three-step test provided for in paragraph 5 is not designed to be the only parameter for the grant of an exception. In fact, the function of that test is further to restrict the scope of application of the (already narrow and few) exceptions and limitations enumerated in Article 5(1) to (4) of that directive. Even where such a use satisfies the requirements of one of those exceptions and limitations, that use may only be permitted if, on top of those requirements, the three-step test is satisfied.

114See recital 70 of the CDSM Directive. See also, by analogy, with respect to the ‘parody’ exception, judgment in Deckmyn (paragraphs 25 and 26).

115See judgments in Funke Medien (paragraph 70) and Spiegel Online (paragraph 54).

116See, by analogy, judgment in Deckmyn (paragraph 25).

117For the only element that stems from the travaux préparatoires of the InfoSoc Directive, see footnote 97 above.

118See, for instance, Gowers, A., Gowers Review of Intellectual Property, 2006, paragraphs 4.86 to 4.89, Recommendation 11: ‘Propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test’.

119See, inter alia, European Commission, Green Paper – Copyright in the Knowledge Economy, 16 July 2008, COM(2008) 466, pp. 19 and 20.

120European Parliament, Committee on Legal Affairs, Draft report on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2014/2256(INI)), paragraph 13.

121See, inter alia, European Commission, Communication from the Commission – Copyright in the Knowledge Economy, 19 October 2009, COM(2009) 532 final, p. 9, and European Parliament, resolution of 9 July 2015 on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2017 C 265, p. 121), paragraph 42.

122Whereas the EU legislature otherwise introduced new exceptions dedicated to other online uses (see Articles 3 to 6 of the CDSM Directive). Thus, while the legislature considered, in that directive, that it was ‘particularly important for the purposes of striking a balance between the fundamental rights laid down in the [Charter] … and the right to property, including intellectual property’ that some reuse of protected material in UGC be allowed, in particular that ‘for the purpose of pastiche’, it does not follow that all UGC should be regarded as ‘pastiche’.

123See judgments in Funke Medien (paragraphs 65 to 76) and Spiegel Online (paragraphs 50 to 59).

124See, to that effect, judgments in Funke Medien (paragraph 76) and Spiegel Online (paragraph 59).

125See Pollaud-Dulian, F., footnote 73, op. cit. A fortiori, the fact that, as the German government underlines, recital 31 of the InfoSoc Directive states that the exceptions and limitations laid down in Article 5 of that instrument ‘have to be reassessed in the light of the new electronic environment’, including new uses, cannot justify distorting the ‘pastiche’ exception to the point that it becomes a ‘catch-all’ clause for creative reuses, including in UGC (see Döhl, F., footnote 79, op. cit., pp. 417 to 418).

126See recitals 4 and 9 of the InfoSoc Directive.

127See Opinion of Advocate General Szpunar in Pelham I (footnote 30).

128See also, with respect to works, Article 10(1) of the Berne Convention.

129See judgment in Pelham I (paragraphs 68 and 72).

130See, to that effect, judgment in Pelham I (paragraph 72).

One can hardly imagine, for instance, a jazz musician stopping in the middle of a chorus to explain to the audience that he just quoted Gershwin’s ‘Summertime’.

132See Opinion of Advocate General Szpunar in Pelham I (point 68). It also satisfies the moral right of attribution granted to authors (see footnote 54 above).

133See, to that effect, judgment in Pelham I (paragraph 71). That is subject to the three-step test laid down in Article 5(5) of the InfoSoc Directive. The more extensive the quotation, the higher the risk that the ‘quoting’ content competes with the normal exploitation of the ‘quoted’ source (see judgment in Spiegel Online (paragraph 79)).

134Judgment in Pelham I (paragraphs 71 to 73). When that is the case, the ‘quotation’ exception may justify the reproduction of both the phonogram and the underlying work, in derogation from the rights laid down respectively in Article 2(c) and 2(a) of the InfoSoc Directive.

135Opinion of Advocate General Szpunar in Pelham I (point 64).

136See, to that effect, judgment in Pelham I (paragraph 72). As long as that is the case, in my view, there may even be a degree of alteration of the source material (change of key, speed, and so on). Obviously, where the protected material reused is altered to the point of not being ‘recognisable’ in the new content, this cannot be regarded as a ‘quotation’, for it cannot fulfil its function as a vehicle for ‘dialogue’ (Ibid., paragraph 73). However, in such a scenario, there is no act of ‘reproduction’ within the meaning of Article 2 of the InfoSoc Directive and, thus, no need for any exception.

137That covers, in my view, examples ranging from ‘quotes’ of tunes by jazz musicians in their improvisation to Laurent Voulzy’s ‘Rockollection’ (who illustrates episodes of his youth with the various songs he listened to on the radio at the time), and to the ‘quoting’ of folk songs by Bartok in his compositions (see Myung-Ji Lee, B., footnote 47, op. cit., pp. 38 and 39).

138Again, in Rochberg’s Nach Bach, there is an obvious and intended contrast between the works of Bach being ‘quoted’ (which follow a rigorous Baroque harmony and structure) and the parts composed by Rochberg (which are atonal) (see Myung-Ji Lee, B., footnote 47, op. cit., p. 56).

139Notably, early 90s hip hop is characterised by the use of ‘samples’ taken from phonograms embodying iconic works of African-American music, intended as recognisable references addressed to the hip hop community. Various hip hop songs even signal such ‘samples’ with scratching sounds, pop and hiss, drawing attention to the fact that a ‘virtual’ vinyl is being played and, thus, another song ‘quoted’ (see, for example, Williams, J.A., ‘Theoretical approaches to quotation in hip-hop recordings’, Contemporary Music Review, Vol. 33, No 2, 2014, pp. 188 to 209, specifically pp. 193 to 196).

140Memes are only covered if the caption comments on or criticises the borrowed image or uses it as evidence in support of the creator’s statement. However, most memes appropriate pre-existing images to create a whole new meaning rather than as a means of ‘dialogue’ with the source work (see Spina Ali, G., footnote 73, op. cit., pp. 722 to 724).

141See Opinion of Advocate General Szpunar in Pelham I (point 67). The apparently paradoxical result of that interpretation is that long and recognisable ‘samples’ may qualify as ‘quotations’ and, thus, be freely permitted whereas short, obscure samples with less obvious connections could not, despite the fact that the harm to the interest of the producer of the phonogram reused seems more likely in the first case than in the second one. However, in my view, short and obscure ‘samples’ should not trigger the reproduction right of the phonogram producer in the first place (see section C below).

142Nevertheless, that will always be subject, on a case-by-case basis, to the three-step test laid down in Article 5(5) of the InfoSoc Directive.

143Since Article 5(3)(k) of the InfoSoc Directive has a transversal character and, in particular, qualifies all the different types of rights of reproduction, the ‘parody’ exception may justify both the reuse of a work and, for instance, the reuse of a phonogram, film or broadcast.

144See Spina Ali, G., footnote 73, op. cit., p. 719.

145Indeed, ‘humour’ in music might not always take the form of traditional ridicule, but may, in my view, perfectly well be generated, for instance, by an incongruous clash of sources, such as mashing-up some folk songs with a death metal track (see Jacques, S., ‘Mash-ups and mixes – what impact have the recent copyright reforms had on the legality of sampling?’, Entertainment Law Review, Vol. 27, No 1, 2016, pp. 3 to 10, specifically p. 6).

146La classe américaine, referred to above, would, in my view, qualify as a ‘parody’ within the meaning of Article 5(3)(k) of the InfoSoc Directive.

147See, for instance, tribunal judiciaire de Rennes (Court of Rennes, France), 10 May 2021, No 17/04478. In that case, an artist drew paintings putting the (copyright-protected) character of Tintin in a context strikingly different from his ‘normal’ environment, to the point of comical incongruity (a context involving, for instance, flirtatious encounters with pin-ups, whereas the sexuality of Tintin is completely absent from Hergé’s work).

148That is so because the monopoly granted to authors over their works and to producers and broadcasters over their phonograms, films and broadcasts does not prevent the free circulation of ideas and common elements, essential to any future artistic creation.

149See, inter alia, judgment of 26 April 2022, Poland v Parliament and Council (C‑401/19, EU:C:2022:297, paragraph 82), and, by analogy, ECtHR, 1 September 2022, Safarov v. Azerbaijan, CE:ECHR:2022:0901JUD000088512, § 30.

150See, inter alia, judgment of 17 December 2020, Centraal Israëlitisch Consistorie van België and Others (C‑336/19, EU:C:2020:1031, paragraph 64).

151In addition, the ‘sample’ may also trigger the related right of reproduction of the interpreter of the recording, requiring further authorisation.

152Thus, it may cost significantly more to clear a sample than to buy paints or brushes. For instance, most memes are not monetised, which would render the payment of licensing fees next to impossible.

153Naturally there are many instances of tolerance of derivative expressions by rightholders. Nevertheless, those expressions remain dependant on their will.

154See, to that effect, judgments in Funke Medien (paragraphs 57 and 58) and Spiegel Online (paragraphs 42 and 43). The fact that the exclusive rights granted to rightholders are not perpetual also contributes to a certain balance between the old and the new. Nevertheless, the duration of rights has been considerably extended over time. For copyright, it now runs for the life of the author and for 70 years after his or her death. For a phonogram, it extends to 50 years after the fixation (or lawful publication) occurs (see, respectively, Article 1(1) and Article 3(2) of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12). This makes it difficult to reuse contemporary culture in a new creation. This is especially true for ‘sampling’.

155I do not mean to imply that copying is always creative. What matters, however, is that it may be, and that the copyright system does not fully accommodate that fact.

156See Pollaud-Dulian, F., ‘« Fait d’hiver »: la revanche des trois petits cochons sur le grand méchant Koons’, RTD Com, 2021, p. 818)

157See judgment of 26 April 2017, Stichting Brein (C‑527/15, EU:C:2017:300, paragraph 70).

158The argument is even made that many cases of creative reuse even increase the value of the source material. For instance, the use of ‘samples’ of forgotten phonograms and musical works may revive interest for the latter and increase, for instance, the number of lawful ‘streams’ of those works on platforms such as Spotify (see, for evidence of that, Schuster, W.M., ‘Fair use, girl talk, and digital sampling – an empirical study of music sampling’s effect on the market for copyrighted works’, Oklahoma Law Review, Vol. 67, No 3, 2015).

159To be exact, those considerations are taken into account, but only within the scope of a given exception or limitation. When a use is covered by such an exception or limitation, then the three-step test laid down in Article 5(5) of the InfoSoc Directive applies, and the question whether the use ‘competes with the normal exploitation’ of the source work or subject matter is taken into account. However, it is not assessed beyond that scenario. The absence of economic harm cannot, thus, justify granting a derogation where no exception or limitation applies.

160See, inter alia, judgment of 17 December 2015, Neptune Distribution (C‑157/14, EU:C:2015:823, paragraph 76 and the case-law cited). See also, by analogy, ECtHR, 10 January 2013, Ashby Donald and Others v. France, CE:ECHR:2013:0110JUD003676908, § 40).

161Opinion in Joined Cases C‑203/15 and C‑698/15 (EU:C:2016:572, point 248).

162That is different from whether the legislature has violated the ‘essence’ of a fundamental right. Respect of that ‘essence’ and proportionality sensu stricto are two distinct requirements, and should be treated as such.

163See Article 5 of the Grundgesetz (Basic law), ensuring freedom of the arts.

164See point 12 above.

165See ECtHR, 7 December 1976, Handyside, CE:ECHR:1976:1207JUD000549372, § 49; Garben, S., ‘Fundamental rights in EU copyright harmonization – balancing without a solid framework – Funke Medien, Pelham, Spiegel Online’, Common Market Law Review, Vol. 57, No 6, 2020, pp. 1909-1932, specifically pp. 1929 to 1930.

166See, by analogy, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 355 and the case-law cited).

167See, by analogy, judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 104 to 107 and the case-law cited).

168For instance, at the time the Rome Convention was adopted (1961), large investments were commonly involved in the production of records (related to the costs of recording studios, technicians, mastering, record manufacturing and distribution), and it is those costs that justified the related right granted to phonogram producers (see WIPO, Guide to the Rome Convention and to the Phonograms Convention, 1981, p. 11). Some commentators question whether that rationale is still valid since, nowadays, for instance, the costs of recording, producing and distributing phonograms are only a fraction of what they used to be (see Hugenholtz, P.B., ‘Neighbouring rights are obsolete’, International Review of Intellectual Property and Competition Law, Vol. 50, No 8, 2019, pp. 1006 to 1011).

169See recital 10 of the InfoSoc Directive. It follows from the history of the Rome Convention that the related right granted to phonogram producers, in particular, was a response to the rise of mass ‘piracy’ of records, occurring in the 1960s with the increasing availability to the public of cheap and easy to use recording machines (see WIPO, Guide to the Rome Convention and to the Phonograms Convention, 1981, p. 11). That right was designed to prevent slavish copies of records from entering the market, because those copies would substitute themselves for the originals, preventing the producers from redeeming their investment, and eradicating their motivation to continue investing in phonograms (see Hugenholtz, P.B., footnote 168, op. cit., pp. 1006 to 1011; Westkamp, G., footnote 56, op. cit.; Grisse, K. and Kaiser, C., footnote 36, op. cit., pp. 79 and 80; BVerfG, decision referred to in point 12 above, paragraph 104).

170See judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 107 and 108).

171Similarly, the Court has ruled, with respect to the sui generis

right granted to the maker of a database over it (see Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20)), that acts of extracting and reutilising the content of a database fall under the exclusive right only ‘where those acts … constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question’ (judgment of 3 June 2021, CV-Online Latvia, C‑762/19, EU:C:2021:434, paragraph 47), typically because such acts would come close to the creation of a substitute product, redirecting revenue that should go to the maker of the database (Ibid., paragraph 40).

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172Extending the related rights to such extracts effectively means that rightholders enjoy a broader right than authors over their works. Producers can effectively prevent any recognisable ‘samples’ being taken from their phonograms, whereas the author of the underlying work would need to show that the ‘sample’ at issue embodies an ‘original’ part of that work. That would often not be the case with short or non-distinctive ‘samples’ that may embody common elements and/or be too brief to carry the ‘originality’ of that work. It is also unclear, in the light of the respective rationale of those two sets of intellectual property rights, why a ‘mere’ act of fixation should be granted better protection than creativity.

173See Senftleben, M., footnote 56, op. cit., pp. 757 to 758; Arora, Y., ‘Music sampling and copyright – are courts hung up on restricting creativity?’, Trinity College Law Review, Vol. 25, 2022, pp. 168 to 190; Westkamp, G., footnote 56, op. cit.; and Kraetzig, V., ‘Pastiche als Fair Use?’, Zeitschrift für Urheber- und Medienrecht, 2024, pp. 1 to 9.

174See Katz, M., footnote 45, op. cit.; Arora, Y., footnote 173, op. cit., pp. 172 to 174); Bently, L. and Sherman, B., ‘Culture of copying – digital sampling and copyright law’, Entertainment Law Review, Vol. 3, No 5, 1992, pp. 158 to 163, specifically p. 160.

175See Döhl, F., footnote 79, op. cit., p. 422, and Arora, Y., footnote 173, op. cit., p. 184.

176See, for the same comment, Grisse, K. and Kaiser, C., footnote 36, op. cit., p. 80; Garben, S., footnote 165, op. cit., pp. 1911, 1912, 1927 to 1929; and Westkamp, G., footnote 56, op. cit.

177See judgment in Pelham I (paragraphs 36 to 38).

178Indeed, in my view, neither the text of Article 2(c) of the InfoSoc Directive nor the system laid down in that directive obliges the Court to interpret the terms ‘reproduction in part’ within the meaning of that provision literally as including any extract of a phonogram (judgment in Pelham I (paragraphs 29 and 30)). In fact, the Court rejected such a literal construction and adopted, instead, a teleological interpretation with respect to the reproduction right granted to authors over their works. There, it interpreted the terms ‘reproduction in part’ within the meaning of Article 2(a) of the InfoSoc Directive as not covering every extract of a work, but only the ones that share the ‘originality’ of the whole.

179As it did, for instance, in Article 15(1) of the CDSM Directive, with respect to the related right granted to publishers of press publications over the online use of their press publications by information society service providers.

180The moral rights granted to authors under international and national law reflect this (see footnote 54 above).

181Indeed, besides the related rights of producers and broadcasters, many memes, GIFs, mashups, ‘samples’ (and so on) will be infringing copyright because they will contain ‘original’ parts of works.

182Nevertheless, one cannot exclude that there may be exceptional circumstances (unforeseen by the legislature) where copyright could constitute a manifestly disproportionate limitation to freedom of expression, which could justify a judge freely permitting a use based on that freedom (see, to that effect, Opinion of Advocate General Szpunar in Pelham I, point 98).

183See recitals 9 to 11 and 14 of the InfoSoc Directive.

184Such as the ‘fair compensation’ granted in cases of private copying (see Article 5(2)(a) of the InfoSoc Directive). Furthermore, with respect to the reuse of works, the moral right of integrity of the author, as conceived under the Berne Convention, would be satisfied were the author allowed to prevent only such reuse that would be prejudicial to his or her honour or reputation. The right of attribution would be satisfied by obliging the creators of tomorrow to indicate their sources, which seems entirely reasonable.

185See Geiger, C., ‘Freedom of artistic creativity and copyright law – a compatible combination?’, UC Irvine Law Review, Vol. 8, Issue 3, 2018, pp. 413 to 458; McDonagh, L.T., ‘Is the creative use of musical works without licence acceptable under copyright law’, International Review of Intellectual Property and Competition Law, Vol. 43, No 4, 2012, pp. 401 to 426; Senftleben, M., footnote 56, op. cit., pp. 751 to 769; Westkamp, G., footnote 56, op. cit.; Döhl, F., footnote 79, op. cit., pp. 387, 417, 440 to 443.

186To satisfy the three-step test laid down in the various international instruments binding the European Union, which curtails the creation of new exceptions to copyright or the related rights (see Article 9(2) of Berne Convention; Article 13 of Trips Agreement, Article 10(1) and (2) of the WC, and Article 16(1) and (2) of the WPPT 1996) and, specifically, to satisfy the ‘special cases’ step, such an exception would need to be circumscribed by necessary and sufficient conditions. Whether the use satisfies the two other steps (no ‘conflict with a normal exploitation’ of the work or subject matter and no ‘unreasonable prejudice to the legitimate interests’ of the rightholders) could be verified by judges on a case-by-case basis.