EU Court Defines 'Pastiche' in Copyright Ruling on Artistic Appropriation

The Court of Justice of the European Union has ruled that for an artwork to qualify as a 'pastiche' exception to copyright infringement, the artist must engage in an 'artistic or creative dialogue' with the original work. The decision stems from a long-running case against German music producer Moses Pelham, who sampled a Kraftwerk song in 1997 without permission. The court stated that the new work must evoke existing works while being noticeably different, and can take the form of stylistic imitation, tribute, or humorous or critical engagement. This ruling applies to visual arts, literature, and film, not just music. Examples given include Christian Marclay's The Clock (2010) and Lubaina Himid's Freedom and Change (1984), which references Picasso's Two Women Running on the Beach (1922). The UK, which has allowed pastiche as a fair dealing exception since 2014, is not obliged to follow this EU definition post-Brexit, though it may do so as 'judicial dialogue'. The ruling brings EU law closer to US 'fair use', which prioritizes transformative use, but the EU standard requires creative engagement first. The article notes that many non-European countries lack a specific pastiche exception, leaving artists there less protected.