The right granted to authors to have exclusive use of their intellectual works is subject to a number of exceptions and limitations, which correspond to situations in which the legislator has struck a balance between the interests of the public and those of the authors.
Among these, Directive 2001/29/EC on copyright and related rights in the information society provided for an optional exception to the rights of reproduction and communication to the public where the work is used for the purposes of caricature, parody or pastiche (Article 5(3)(k)), which has not been transposed by the Italian legislature.
Since the concept of ‘pastiche’ is not defined in legislation, the Court of Justice has been called upon to provide a uniform interpretation for the whole of the European Union.
The case most recently brought before the Court concerned the inclusion of a rhythmic sequence lasting approximately two seconds – taken from the track “Metall auf Metall” by the German band Kraftwerk – in a song entitled “Nur Mir”. In this regard, the Court was asked to clarify whether the use for the purposes of a ‘pastiche’ is of a residual nature and encompasses any artistic engagement with a pre-existing work, including sampling, or whether, on the contrary, the presence of humour or an act of tribute is necessary for the exception to apply.
In its judgment of 14 April 2026, delivered in Case C-590/23, the Court ruled that ‘pastiche’ need not necessarily constitute an expression of humour or a mockery, since otherwise it would have no distinct character from parody and caricature and would end up overlapping with them.
The concept of pastiche, however, does not have a catch-all nature; it must cover creations that evoke one or more pre-existing works and which, whilst differing from them, utilise certain of their characteristic elements protected by copyright, including through sampling, ‘for the purpose of establishing an artistic or creative dialogue with those works which is recognisable as such and which may take different forms, in particular that of an open stylistic imitation of those works, a tribute to them, or a humorous or critical engagement with them’ (paragraph 58 of the judgment).
The Court further clarified that use for the purposes of pastiche does not necessarily presuppose the intention to use certain elements of the protected work for such purposes, as it is sufficient that the nature of the pastiche is recognisable to a person familiar with the pre-existing work.
(Fabrizia Serpieri)
Articoli Correlati