Prolonging the enduring dispute between German rapper Moses Pelham and Kraftwerk members Ralf Hütter & Florian Schneider-Esleben (amongst other parties in proceedings), the German Federal Court of Justice referred the case to the Court of Justice of the European Union (CJEU) for a second time. The CJEU has now handed down a further interpretation of how the pastiche defence to copyright infringement operates in practice in the EU, with the uncommonly used defence being deployed in response to Mr Pelham’s two-second sample of Kraftwerk track Metall auf Metall.
This follows from the initial CJEU referral, where the Court made its first determination of how the defence of pastiche should be applied when deployed in claims. In particular, Attorney General Emiliou proposed that pastiche be defined, in a three-stage test, as “an artistic creation which (1) evokes an existing work by adopting its distinctive ‘aesthetic language’ while (2) being noticeably different from the source imitated, and (3) is intended to be recognised as an imitation”.
Though this definition appears relatively concise and clear, the German Courts requested a further referral of the matter to the CJEU for clarification on whether the defence of pastiche could be applied broadly to any form of copyright work, which would then risk the protection afforded to rightsholders given that the Attorney General notes that “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”.
As such, in the new referral, the CJEU clarifies that the purpose of a lawful pastiche is to be objectively identifiable with an earlier work or an author and their ideas, though not so broadly as to be all-encompassing. Ultimately, questions have been raised as to whether the referral was even necessary given that the initial referral served as a succinct analysis, though it did grant the CJEU to clarify that the defences of pastiche, parody and caricature are, although similar, distinct in their own rights. Whether this flurry of referrals will result in an uptick of pastiche defences in copyright claims in the EU remains to be seen, and will be of great interest to the development of EU copyright law.
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