New masters: painter’s win clarifies ‘pastiche’

By applying the copyright exception to an ‘analogue’ work, a German court reflected our digital reality, says Christiane Stuetzle of Morrison & Foerster.

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.