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23 March 2022CopyrightChristiane Stuetzle

New masters: painter’s win clarifies ‘pastiche’

The Berlin Regional Court (file number 15 O 551/19) has ruled that the reference to a pre-existing digital work by means of collage-like integration into a new painted work by German painter Martin Eder is fully permissible as a pastiche and does not constitute a copyright infringement of such pre-existing work.

In its judgment, the Berlin court emphasised the importance of the pastiche copyright exemption in the context of the artistic dialogue with digital artworks within “analogue” art, such as the painting in question.

This goes along with the reasoning of the German lawmaker, which emphasises that the pastiche exception also has to take into consideration the increasing digitisation, new technical inventions, and corresponding new ways of interacting with digital works. An appeal against the judgement is permitted.

Why is this judgment important?

On the EU level, there is no case law on the copyright exception for pastiche.

In Germany, to our knowledge, this also is the first judgment on the scope and applicability of the pastiche copyright exception.

Furthermore, this judgment is the first ruling for such copyright exceptions since the revision of German copyright law, which came into effect on June 7, 2021, and has ended a legal vacuum caused by a ruling of the Court of Justice of the European Union in an unrelated case (“Metall auf Metall”, judgment of July 29, 2019).

In Metall, the CJEU had declared a provision of the German Copyright Act “UrhG” (its section 24), under the heading “free adaptation”, as no longer applicable for formal reason, ie because the copyright exceptions and limitations under the EU member states’ national laws have to be based on the exhaustive list mainly provided for under article 5 of the Information Society (InfoSoc) Directive 2001/29/EC.

Since the German Copyright Act did not specifically use the term “pastiche” but instead used the term “free adaptation” as the umbrella term for a bundle of copyright exemptions, including pastiche, caricature and parody, the CJEU considered the formalities not to be met and the provision too broad. Following the CJEU’s judgment, section 24 UrhG could no longer be applied.

Therefore, the CJEU decision led to a dramatic legal vacuum and unanswered questions as to how the “Freedom of the Arts”, which includes the interaction with pre-existing works, could be upheld.

The vacuum ended when the German lawmaker fixed the problem and re-implemented the pastiche, caricature and parody copyright exception under their actual name and with a paragraph of their own in the revised German Copyright Act (section 51a), which became effective on June 7, 2021.

What is a pastiche?

Under EU law, the pastiche has been anchored in the InfoSoc Directive as a copyright exception since 2001 (along with the further copyright exceptions of caricature and parody). However, a definition of the term is missing under the InfoSoc Directive.

The term historically comes from the art world and one speaks of a pastiche when an existing work (in whole or in part) or a typical style is being taken over into a new artwork where a dialogue with such referenced work takes place.

The German lawmaker likewise did not include a definition of the pastiche exception in the German Copyright Act itself. However, in the legal reasoning to such revision of the German Copyright Act, with remarkable clarity, the German legislator emphasised that the pastiche exception has to take into consideration the increasing digitisation, new technical inventions, and corresponding new ways of interacting with digital works.

Correspondingly, the lawmaker highlighted that pastiches are an integral part of European culture and that the pastiche exception applies to all kinds of uses from the creation of analogue artworks such as paintings as well as for digital content, including user-generated content, such as memes, mashups, etc.

What will it mean for artists?

Art as such always includes a reference or interaction with the pre-existing, be it other artworks, culture, or society, and art has never been created in a vacuum or out of any context.

By applying the re-instated copyright exception and reflecting the German lawmakers’ reasoning and the digital reality, the judgment brings more legal certainty concerning the interaction with pre-existing digital works.

This is true for artists in a more traditional way, but also for any kind of user-generated content. Therefore, the judgment is of general importance beyond this individual case.

How has it clarified legal issues?

In its judgment, the Berlin court emphasises the importance of the pastiche copyright exception in the context of the artistic dialogue with digital artworks within “analogue” art, such as the painting in question.

This goes along with the reasoning of the lawmaker, which emphasises that the pastiche exception also has to take into consideration the increasing digitisation, new technical inventions, and corresponding new ways of interacting with digital works.

The judgment, therefore, reaches far beyond this individual case and is of general importance for the protection of the Freedom of the Arts, as is protected by both the EU Charter of Fundamental Rights (article 13) and the German Constitution (article 5).

Morrison & Foerster acted for Martin Eder.

Christiane Stuetzle is a partner at Morrison & Foerster. She can be contacted at: cstuetzle@mofo.com

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