Long overdue, but good to see: Germany’s new copyright exception for pastiche applied for first time

Although overall the EU Copyright Directive is bad news for the digital world because of things like its need for the use of automated upload filters, it does contain a few glimmers of good sense. For example, it rectifies a failing of the previous EU legislation in this area, the 2001 Infosec Directive. The 2001 law allowed Member States to implement an exception or limitation for the use of copyrighted material “for the purpose of caricature, parody or pastiche”. Because it was vague and optional, this exception was not widely implemented by EU countries.

The EU Copyright Directive addresses that by making it mandatory to allow for caricature, parody, and pastiche uses. However, even this improvement is flawed, since it only applies to online services. Member States still have the option to extend that exception, but once more it is a vague and unsatisfactory situation. An important case in Germany, discussed in depth on the Kluwer Copyright Blog by Susan Bischoff, provides some important insights into what the copyright notion of pastiche now means in the EU context. The same blog has another, more general exploration of the topic.

Bischoff’s post goes into the details of the German case, but reduced to its essentials, a “kitschy” image of a cherry tree by a London-based digital concept artist made a modified appearance in a painting by a Berlin-based German painter. The former claimed copyright infringement had taken place. For the first time, the court applied a new section of German copyright law that permits use of material for the purposes of caricature, parody, and pastiche. It considered whether the use of the cherry tree motif could be considered a pastiche of the original, and found that it was indeed a permitted use. Bischoff’s blog post explains:

The judges conduct a detailed assessment of the painting, analyzing its individual components, their interpretation and collage-like composition, as well as the different levels of detail in the painting technique. The court concludes that the cherry tree is not only a background motif but a collage element. With regard to the necessary interaction, the court finds that this “is to be seen in the fact that a typical kitsch picture, which is supposed to offer the consumer something beautiful and attractive, becomes the content of a collage-like representation, which forces it to be viewed in a different, critical context” as “the viewer of the painting puts herself in the position of an elderly person who […] is looking at a panorama in which the vibrant green in the foreground near this person is replaced all around by a gloomy, unreal-looking scenery”.

It’s great that the German judges conducted such a thoughtful and nuanced analysis, and that they affirmed that this incorporation of an element from another work was a pastiche, and therefore permitted. But it is absurd that it has taken over 20 years to fix this bug in the EU copyright legislation, and that something as natural and creative as pastiche was not regarded as a self-evidently legal way to re-purpose existing copyright material.

Featured image created with Stable Diffusion.

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