51 German Copyright Act (hereinafter “UrhG”) permits to reproduce, distribute and communicate to the public a published work for the purpose of caricature, parody and pastiche. The legal provision is a “classic” limitation provision of copyright law. As an exception, it legitimises the use of a work – even without the author’s consent. It is intended to create a balance between the interests of the author on the one hand and the interests of the cultural industry on the other.
Key requirement of § 51a UrhG is that the older work is used for the purpose of caricature, parody and pastiche. The terms “parody” and “caricature” have been developed and defined by German (Until mid-2021, the connecting factor was so-called free use (Section 24 (1) UrhG old version): BGH, GRUR 2003, 3633 – Gies Adler; GRUR 2008, 693 – TV Total; GRUR 2011, 134 – Perlentaucher; GRUR 2016, 1157 – Promis auf fett getrimmt; GRUR 2020, 843 – Metall auf Metall IV) case law since the Copyright Act came into force in 1966 and by European (ECJ, GRUR 2014, 972 – Deckmyn) case law since the InfoSoc-Directive (Directive 2001/29/EC) came into force in 2001. In contrast, there was and is no corresponding case law on the term “pastiche” (yet).
The “pastiche exception” has become known for the first time through the decades-long dispute “Metal on metal (I-V)”, which resulted (provisionally) in the “Pelham et al.” judgement of the European Court of Justice (ECJ) in 2019.
This dispute concerns the permissibility of so-called music sampling: the music producer Pelham had incorporated a two-second rhythm sequence from the music track “Metall auf Metall” by the band Kraftwerk into a new music track. In eleven court rulings – five of which came from the Federal Court of Justice, one from the Federal Constitutional Court and one from the European Court of Justice – the courts predominantly classified this transformative use of the work as an infringing act of reproduction and referred to the continued recognisability of the extracted rhythm sequence. (ECJ, GRUR 2019, 929 – Pelham and others; BGH, GRUR 2013, 614 – Metall auf Metall II; GRUR 2017, 895; see also BVerfG, GRUR 2016, 690).
What is special about the case is that the Copyright Act was amended not only during the “Metal auf Metall” dispute, but also as a result of the ECJ’s “Pelham et al.”-ruling: In June 2021, the provision § 51a UrhG was introduced. It goes back to Art. 5 para. 3 lit. k InfoSoc Directive. At the same time, the free use (§ 24 para. 1 UrhG, so-called “Freie Benutzung”), which previously determined the permissibility of transformative uses of works, was removed from the Copyright Act due to its incompatibility with the InfoSoc Directive.
The amendment to the law has increased uncertainty as to which standards are used to assess the permissibility of transformative use of works. A second referral is currently pending before the ECJ in the “Metall of Metall” case (See at curia.europa.eu, Case C-590/23 – Pelham and others). It concerns the legal concept of pastiche: The ECJ is to decide whether the pastiche threshold is a catch-all offence for an artistic adaptation of a pre-existing work – including sampling and other design techniques of remix culture (BGH, GRUR 2023, 1531 – Metall auf Metall V).
It is to be hoped that the ECJ will define “pastiche” as distinct from a “parody” (see § 51a UrhG) and resolve the current uncertain legal situation. Since the introduction of § 51a UrhG, there has only been agreement in case law that a pastiche is an act of stylistic imitation (See explanatory memorandum, printed matter 19/27426, p. 91). However, the extent to which the earlier work may be referenced for this purpose is unclear.
For example, the Regional Court of Berlin affirmed a pastiche in the case of an extensive transfer of a computer image into an oil painting, referring to the inherent communicative act of stylistic imitation. This contains an evaluative reference to the pre-existing work and presupposes the adoption of foreign work (parts) (LG Berlin ZUM-RD 2022, 498 para. 37 et seq). In contrast, the Cologne Regional Court rejected a pastiche in the case of a YouTube instructional video that retold Heinrich Böll’s “Anekdote zur Senkung der Arbeitsmoral” (Anecdote on Lowering the work ethic) in a comic-like manner and translated it into the present day by illustration. The Cologne Regional Court pointed out that the instructional video completely reproduced Heinrich Böll’s work (Regional Court Cologne, ZUM-RD 2024, 410). It did not, however, mention the stylistic differences between the works or the referential character of the pastiche, which, however, requires the recognisability and adoption of defining features of the older work (In detail: Wachtel, ZUM-RD 2024, 420).
Due to the uncertain legal situation, the ECJ’s decision is eagerly awaited by the creative industry. The targeted and recognisable reference to another person’s creative work has long since become a popular stylistic device. The applications of the so-called remix are numerous. They range from the music industry, commercials and educational videos to the use of memes in political and pop-cultural contexts. What they have in common is that they refer to a pre-existing (music, language, film) work by way of a transformative use of the work and deal with it in a humorous, playful way and through stylistic imitation. Where the boundaries between infringing reproduction and authorised use of a work lie will hopefully soon be answered by the “Pelham et al. II”-ruling of the ECJ.
