Comments to Eleanor Rosati on the Opinion of the Attorney General at the CJEU on pastiche [Zuschrift an Eleanor Rosati über die Schlussanträge des Generalanwalts am Europäischen Gerichtshof, Emiliou, in der Rechtssache Pelham II, C-590/23 vom 18. Juni 2025]

Ortland, Eberhard

Abstract

The AG rightly noticed that the French word "pastiche" has been used in many languages and artistic fields for various kinds of reuse of previously created forms, and he also noticed that the translations of the word "pastiche" in those versions of the Infosoc-Directive where it has been translated should be relevant for establishing a binding interpretation of the term in European copyright law. But he fails to take into account that in the official Czech and Slovakian versions of the Infosoc-Directive, "pastiche" was rendered as "koláže", which is an established term in the vocabulary of these Central European languages for the things that are called "collage" in French (and also in English), i.e. compositions that produce new images, texts, films, musical compositions or other kinds of artworks by rearranging and pasting (parts of) previously existing works. He seems to believe that European Law should stick to the interpretation of "pastiche" that has been used by French courts, i.e. imitation of certain patterns of style, and nothing else. But he does not give any reason why the court should be allowed to ignore the established Czech and Slovakian versions of the Infosoc-Directive which are both relevant sources of law with the same authority as the English, French or Italian versions. "Pastiche" is certainly not a "catch-all" term, even though it may be difficult in some cases to distinguish the kinds of reuse that are pastiche from others that are not. The court is now asked to specifiy the types of cases that should be allowed under the pastiche exception. They should not follow the opinion of AG Emiliou, but take into account all versions of the relevant directive and make sense of the full meaning of the concept of pastiche in the arts and art criticism.