The CJUE has finally shed light on an issue that has been for years uncertain: how the pastiche exception should be applied, particularly in the context of sampling, under article 5.3 k) of the Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.

The dispute arose from the use by Pelham GmbH and others of a two-second sample taken from Kraftwerk's song "Metall auf Metall", which was inserted in loop in the song "Nur mir".

The main issue raised is whether this use infringes the copyright-related right held by phonogram producers, or whether it may fall within the pastiche exception provided by the above-mentioned EU Directive.

After multiple proceedings, this case reached again the Court of Justice of the EU, now in order to determine whether the sample at issue meets the requirements to be considered a 'pastiche', once rejected its recognition as 'caricature' or 'parody' in absence of humour or mockery.

Thus, the Bundesgerichtshof (German Federal Court of Justice) referred two main questions:

"(1) Is the provision limiting use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive [2001/29] catch-all [in nature (Auffangtatbestand)] 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 Directive [2001/29] 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?"

The CJUE starts by noting that the concept of "pastiche" is not defined in the Directive 2001/29, and must therefore be treated as an autonomous concept.

Firstly, it is noted that a 'pastiche' shares common features with the exceptions of 'parody' and 'caricature', mainly the fact that all of them refer to a previous existing work. However, they must be interpreted separately as each one has a different scope and purpose, even if they are provided in the same Article 5.3 k) of Directive 2001/29.

It follows that even though 'pastiche' may constitute an expression of humour or mockery, like 'parody' and 'caricature', it cannot be required as mandatory, since such an interpretation would have the effect of conferring on that exception an identical scope to that of 'parody' or 'caricature'.

Thirdly, the Court emphasizes that Article 5.3 k) of the Directive 2001/29 seeks to grant a fair balance between the protection of authors rights and fundamental liberties, especially freedom of expression and artistic liberty. As such, the 'pastiche' exception must not be interpreted restrictively, but in a consistent manner with these freedoms. In this context, sampling is a form of artistic expression protectable under article 13 of the Charter of Fundamental Rights of the EU, not withstanding the fact that it cannot cover imitations of protected subject matter or plagiarism.

In this sense, the CJUE identifies four requirements in order to apply the 'pastiche' exception:

1. An evocation of a pre-existing work: the new creation has to refer, in a recognizable way, to one or more earlier works, even if it does not reproduce them in full;
2. The new work must differ perceptibly from the original: it cannot be a mere copy, there must be sufficient transformation so that both works are clearly distinguishable;
3. The use must involve the incorporation of characteristic elements of the original work that are protected by copyright: these elements must remain identifiable as originating from the earlier work.
4. The new creation must aim to establish a recognizable artistic or creative dialogue with the original work: this dialogue can take different forms, such as stylistic imitation, homage, or even critical or humorous engagement.

To sum up, the Court considers that the appropriate balance between safeguarding artistic freedom and protecting authors and related rights is achieved by considering that the 'pastiche' exception covers the evocation (including by means of sampling) of the rhythmic sequence of a musical work subject to the fulfilment of the above-mentioned requirements. Such 'pastiche' can adopt different forms, such as a direct imitation of the works' style, a tribute or a humoristic or critical confrontation with them.

Finally, it remains to be seen how the Courts will interpret that a person familiar with the earlier work is able to recognize the 'pastiche' nature in the later one. Are we approaching to a new evaluative standard similar to the 'average consumer' already used in trademark law?