It’s happened! After well over 20 years of litigation, the Metall auf Metall case still isn’t done! But it at least now has gotten another ruling. I previously talked about the Advocate General’s opinion on this case, but now the judges have judged. So let’s take a look at what they have judged.
- What on earth is a pastiche?
- The new pastiche definition
- Europe’s “Fair Use”
- What this means for sampling
- Where to go from here?
What on earth is a pastiche?
Nobody knows what a pastiche really is. In my previous post, I suggested the following definition:
A pastiche is when you use certain elements of a creative work to evoke its feeling, without being a parody. So for example, when you want to film a classic Western, you’ll use certain tropes (bad guy wears black, wild west, sheriff, horses, guns, alcohol, high noon, etc) and techniques (cowboy-shot, ultra-close-up, etc) and whatever else.
But because all definitions of a pastiche kinda suck, because interpreting this word based on existing definitions would make copyright really unfair (because it’d mean taking a 2s sample would be as bad as reuploading a full song) and also because nobody really uses this word, the ECJ has used a clever trick: They just ignore what the word means right now and make a new one.
48 In particular, in view of the objective pursued by Article 5(3)(k) of Directive 2001/29 and the fact that the exceptions set out in that provision do themselves confer rights on the users of protected subject matter which are intended to ensure observance of fundamental freedoms, the concept of ‘pastiche’ must be interpreted not strictly but in full conformity with that objective and those freedoms
So, what definition are they coming up with?
The new pastiche definition
58 In the light of all the foregoing considerations, the answer to the first question is that Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the exception for ‘pastiche’, within the meaning of that provision, does not have a catch-all nature (Auffangtatbestand) but covers creations which evoke one or more existing works, while being noticeably different from them, and which use, including by means of sampling, some of those works’ characteristic elements protected by copyright, in order to engage with those works in an artistic or creative dialogue that is recognisable as such and that can take different forms, in particular the form of an overt stylistic imitation of those works, of a tribute to them or of humorous or critical engagement with them.
Let’s break this down in detail. So, for something to qualify as a pastiche, it must do the following:
Checklist: Pastiche requirements
- It must reference something that already exists. Starting at first principles here; if you’re making something completely original, you obviously aren’t making a pastiche.
- It must be different from the source material (so no simple plagiarism)
- It must use elements from the source material that are protected by copyright (there are some more exceptions to copyright, such as the threshold of originality: You can’t copyright eg. a simple geometric shape, so as far as copyright is concerned, you don’t need to bother with a pastiche for that)
- Using the source material directly is fine (sampling is allowed)
- It must visibly engage with the source material in an artistic or creative dialogue (so you can’t just say “but I was having a creative dialogue”, you must actually be able to show how the work is engaging in said dialogue.) Examples of what this dialogue may look like:
- An overt stylistic imitation (eg. drawing something new while attempting to make it look like van Gogh painted it)
- A tribute
- Humorous engagement, even if it isn’t a parody (I’ll note here that human creativity is much more fluid than the rigid categories copyright law suggests, so there’s a bit of overlap between a Pastiche and a Parody. Anyway, a YouTube Poop would be fine.
- Critical engagement (perhaps: turning a pro-war song into an anti-war song)
The court also explicitly states that a pastiche is not a “catch-all” thing. So it’s not that a pastiche is a more vague than a parody or caricature, or any other copyright exception, but that it’s equal to all the others.
Europe’s “Fair Use”
I think that with this new interpretation of the pastiche, the European copyright exceptions catalogue is fairly complete to the average user of copyrighted stuff. Article 5 of the updated infosoc directive lists the following exceptions (paraphrased):
- Caching (ie, normal internet/browser things)
- A right to make copies if
- it’s on paper and not sheet music and compensated, or
- it’s for private use and compensated, or
- it’s a library/museum/archive/etc. (with some other rules), or
- it’s a TV station preserving the stuff it sends out live, or
- it’s a “social institution pursuing non-commercial purposes, such as hospitals or prisons” and compensated
- A right to make copies and make these copies available to the world, if
- it’s an illustration for teaching or science research, provided attribution of the author, or
- it’s to make it accessible for people with disability, or
- it’s a quote, or
- it’s being used by the state to do its job (police work, parliament work, etc), or
- it’s part of a political speech, or
- it’s part of religious or official celebrations, or
- it’s something you can always see from a public street (freedom of panorama), or
- it’s some random stuff in the background that doesn’t matter for the actual image, or
- it’s to advertise an exhibition/auction in which said art is featured, or
- it’s a caricature, parody or pastiche, or
- it’s to show how to repair something, or
- it’s used to reconstruct a building, or
- it’s no longer commercially sold and on a library computer, or
- it’s not important (and local law exists for it)
Note: This is an EU directive, and each member state is free to pick however many exceptions it wants from this list. France and Italy for example do not believe in the freedom of panorama, so if you want to take a picture of the Eiffel Tower (at night – the guy who built the tower is dead for long enough, the guy who made the lights is not), you’ll need to pay someone before you can publish that picture – and they may prevent you from publishing it altogether. So do check with your local legislation before marching out and flipping off copyright holders, the exception you want to use may not exist.
What this means for sampling
Sampling is now, by and large, easier to do legally. As the Metall auf Metall case is about a 2s loop of audio, and Pelham was able to demonstrate that his song did engage in creative dialogue with the original Kraftwerk song, the bar on where you can convince a judge that you did engage in a creative dialogue is probably fairly low. I say “probably” because while the ECJ defined what a pastiche is now, it didn’t actually say that Pelham’s Nur mir is definitely a pastiche. That’s up for the German courts to decide, and they have already found that Pelham’s song does engage in this creative dialogue.
However, there is another limit to copyright: The threshold of originality. Just like you can’t copyright a simple geometric shape, you also can’t copyright individual notes, a I-IV-V-I “four chord” progression or standard drum beats (eg. the “boots and cats” beat). This threshold of originality is lower than the 2s loop from Metall auf Metall (hence why we’re in this mess to begin with), however, we kinda do run out of time to do too much original stuff faster than that. So chances are that between pastiches and the threshold of originality, sampling is now just outright possible.
With laws being an interpretation-based thing, it of course doesn’t necessarily mean that some right holder is willing to sue anyway – but the chances of that actually happening now are growing slimmer.
Where to go from here?
The ECJ’s redefinition of the term pastiche is certainly pragmatic, solving the issue at hand while not requiring a rewrite of copyright as a whole and is definitely a step in the right direction for artistic liberties. However, it still comes with the caveat that even though a pastiche is defined now, member states don’t necessarily need to adopt the pastiche exception at all. While I’d like a more complete reform, I’d say that a good first step would be to fully harmonize the copyright exceptions in the EU, that is to say: Make all of them apply in every country.
I’d start an EU initiative for this, though given my reach and this incredibly nerdy issue, it probably won’t get too far, so instead I’ll ping my MEPs about this instead – and I hope you do too.
Leo Wattenberg 