Pastiche – “The scope of the existing exceptions is being tested”

The scope of the existing exceptions is being tested — most recently the one for pastiche. Hardly anyone has heard the word before, yet it could have become a catch‑all exception not unlike fair use in the US. The good news: nobody actually wants that. Well, not the CJEU it seems.

The valiant efforts of Moses Pelham may be nearing the end of their long march through the wide reaches of artistic freedom, parody, and now pastiche. Then again, perhaps not. The German Supreme Court (the BGH) still has to decide the case, based on the CJEU’s latest interpretation of what “pastiche” means under the InfoSoc Directive. At least we know that it is an autonomous concept of EU law.  Maybe Moses Pelham discovers another angle to continue his journey, perhaps applying fair use in the European Union, relying on the Madonna decision in the US (Salsoul v Ciccone). He would surely love it but US law might not be en vogue in the EU at the moment.

For now, the CJEU (Case C‑590/23) has probably stated: if a new work is clearly distinct but still evokes an earlier one by using some of its protected elements, that can fall within the exception. But the new work must engage with the earlier one in a recognisable artistic dialogue—whether that’s imitation, tribute, humour, or a polite critique.

One probably needs to read it often enough to understand it. The next thing to watch in the coming months will be how the German Supreme Court deals with the judgment, and especially how it chooses to interpret ‘engagement’. The only certainty tonight comes from my Italian friends, who aren’t legal experts but are rarely wrong: “pasticchio” simply means “mess.” I checked with Co-Pilot and it agrees: “[pasticchio] carries shades of muddle, botch‑job, shambles, or something done in a confused, chaotic way.” Even AI gets it right sometimes.