In brief
- The Court of Justice of the European Union (CJEU) has delivered its long-awaited Grand Chamber ruling in Pelham II, providing the first authoritative EU definition of "pastiche" in copyright law.
- Pastiche, as defined by the CJEU, is not a broad creative licence: it requires the new work to evoke an existing one, but also to be noticeably different from it, and to use characteristic protected elements in a recognisable artistic or creative dialogue.
- In the UK, genuine style imitation or a true medley is required for pastiche to be relied on as a potential defence to copyright infringement. Where copying is used to impersonate and deceive rather than to engage in creative or critical dialogue, a pastiche defence will fail.
- For AI-generated outputs, Pelham II's "dialogue" requirement is likely to focus attention on the human user's creative contribution: the more the output resembles a substitute rather than a recognisable creative conversation with the source, the less likely a pastiche defence will succeed.
What is a pastiche?
The UK introduced section 30A of the Copyright, Designs and Patents Act 1988 (CDPA) in 2014 to implement Article 5(3)(k) of the InfoSoc Directive (2001/29/EC), permitting use of a copyright work for the purposes of caricature, parody or pastiche, provided the use amounts to fair dealing.
However, "pastiche" is not defined in either the UK or EU legislation, and there has been limited case law as to the limits of the exception. There have been a small number of UK cases (discussed further below) and we now have the first EU decision, with the CJEU's Grand Chamber handing down its ruling in Pelham II.
What did the CJEU decide in Pelham II?
Pastiche requires recognisable dialogue
The Pelham litigation stems from a decades-old dispute over a two-second rhythmic sequence sampled from Kraftwerk's 1977 recording Metall auf Metall and looped in a track by Sabrina Setlur called Nur Mir. In this latest reference to the CJEU, the German court asked whether such sampling could be permitted as pastiche.
The CJEU held a work qualifies as pastiche where it:
- evokes one or more pre-existing works;
- is noticeably different from those works; and
- uses characteristic protected elements of the source material in a way that engages in an artistic or creative dialogue that is objectively recognisable as such.
The CJEU held it is not necessary to prove that a creator subjectively intended to make a pastiche; what matters is whether the pastiche character would be recognisable to a person familiar with the pre-existing work.
The CJEU drew a firm line against concealed imitation: pastiche presupposes overt, recognisable creative engagement and cannot legitimise plagiarism dressed up as homage.
While acknowledging sampling as a legitimate artistic technique engaging freedom of expression, the CJEU held it will fall within the pastiche exception only where the resulting work meets all three elements of the test - in particular, where it creates a recognisable dialogue with the source. The German court must now apply this test in the context of the two-second sample used in this case.
What is the position in the UK on pastiche?
Shazam: the UK's first case
The first UK case to consider the pastiche defence (as well as the related defence of parody) was Shazam Productions v Only Fools The Dining Experience (which we previously reported on: Court confirms copyright can protect characters: Cushty!), arising from an immersive dining experience based on the iconic TV show Only Fools and Horses.
The court identified two routes to establishing pastiche: imitating the style of pre-existing works, or assembling a medley of elements from them. In either case, the resulting work must be noticeably different from its sources.
The defence in this case failed. The defendants' dining experience reproduced the characters, backstories and catchphrases of the TV show in a live format that was designed to make the audience feel they were meeting the originals. The court held this was reproduction, not pastiche.
The fair dealing analysis was equally unfavourable to the defendants. Even assuming pastiche had been established, the use would not have constituted fair dealing, not least because licensed theatrical exploitation of the same works already existed, meaning the dining experience competed directly with a normal exploitation of the copyright.
Branding something as a "tribute" or "homage" is therefore not enough. If the exercise is designed to replicate rather than converse with the copyright work, the pastiche defence is unlikely to get off the ground.
Samherji: when activism becomes deception
A more recent UK pastiche case, Samherji HF v Fridriksson (which we reported on: Does the end justify the means? Striking a balance between IP and freedom of expression), arose in a very different context. The case demonstrates both the potentially complex interplay with arguments of freedom of expression, as well as the challenges for brand owners in dealing with parodic/pastiche use of their brands. The defendant, an artist and activist, created a website designed to resemble the Icelandic fishing company Samherji's official UK site, incorporating its logo and brochure alongside a fake press release containing admissions the company had never made. This was a form of 'culture jamming', with the defendant using the claimant's brands and copyright works to draw attention to its role in a particular scandal.
The defendant sought to invoke defences of fair dealing for the purposes of criticism, review, parody and pastiche. The court accepted the underlying subject matter (alleged corporate wrongdoing in the 'Fishrot' scandal) was of legitimate public interest. However, creating and disseminating a false press release through a website impersonating the claimant's official site crossed the boundary between lawful expression and unfair dealing.
The pastiche and related fair dealing exceptions protect creative and critical expression, not deception. The form of the use matters as much as its stated purpose.
Does the UK have to follow Pelham II?
Post-Brexit, the CJEU's decisions are not binding on UK courts, though the courts can take those decisions into account.
Given that section 30A CDPA was enacted to implement Article 5(3)(k) of the InfoSoc Directive, and domestic pastiche case law remains limited, the CJEU's decision in Pelham II is likely to carry real persuasive weight as an aid to interpreting the UK exception consistently with its legislative origins.
The CJEU's "dialogue" framework is therefore likely to influence how judges in this jurisdiction approach novel pastiche claims.
What does this mean for AI?
Generative AI tools that reproduce stylistic elements of existing works - whether through music generation, image synthesis or text imitation - may also give rise to consideration of whether the pastiche exception applies to their outputs. Indeed, the defence was going to feature in the Getty Images v Stability AI claim but, given the claimant in that case decided to abandon its copyright infringement claim relating to outputs, the pastiche defence also fell away.
Should this issue arise in a future case, the objective recognisability test from Pelham II may assist AI users to some degree: the question is whether the output reads as pastiche to someone familiar with the source, not whether the user can articulate a creative intention. But this is not a low bar. The prohibition on concealed imitation is directly relevant to AI outputs designed to be indistinguishable from a human creator's work, particularly where the goal is substitution rather than dialogue.
The "dialogue" requirement is therefore likely to focus scrutiny on the human user's creative contribution: the prompting decisions, iterative refinements and editorial choices shaping the final output. For example, where a user simply instructs a model to generate content "in the style of" an artist and publishes the first plausible result, they may struggle to argue that the output satisfies the requirement of an objectively recognisable creative conversation.
The UK's fair dealing requirement adds a further layer. Even where an AI output might in principle qualify as pastiche, the court will also ask whether more of the copyright work was taken than necessary and whether the use competes with normal exploitation of the source work.
Comment
The emerging picture of the pastiche exception is that it protects creative dialogue, not reproduction; expression, not deception; and imitation that is overtly recognisable, not concealment.
For rights holders, these decisions are broadly reassuring: the exception does not operate as a general transformative-use safe harbour, and courts have shown a willingness to scrutinise the substance of what is claimed to be pastiche.
For creators (human or AI-assisted), the closer a work comes to substituting for the original, the harder it will be to invoke the exception. Ensuring that dialogue with the source is visible and genuine will matter both legally and artistically.
As AI-generated content becomes more prevalent, courts will inevitably face difficult questions about where to draw the line between inspiration and infringement.
For any questions on the pastiche exception or copyright more generally, please contact a member of our Copyright team.