In the world of copyright law, the boundaries and definitions of various terms can often be a source of intense legal debate and scrutiny. One such debate has emerged around the concepts of ‘parody,’ ‘pastiche,’ and ‘caricature,’ and whether ‘parody’ should be considered an all-encompassing term for these related but distinct artistic expressions. This discussion is particularly relevant in the context of the Court of Justice of the European Union (CJEU) and its interpretation of these terms within the framework of the Berne Convention and the Information Society Directive (InfoSoc Directive).
The recent referral to the CJEU in the Pelham saga has once again brought these concepts into the legal spotlight, this time focusing on ‘pastiche.’ It is essential to understand that the CJEU’s decisions have far-reaching implications for copyright law within the European Union (EU) and can set important precedents for other jurisdictions. To shed light on this complex topic, we’ll explore the different facets of ‘parody,’ ‘pastiche,’ and ‘caricature,’ and whether it is appropriate to treat ‘parody’ as a catch-all term.
Pelham I and Pelham II: Setting the Legal Stage
Before we explore the intricacies of ‘parody,’ ‘pastiche,’ and ‘caricature’ in the context of copyright law, it’s essential to understand the legal backdrop against which these debates have unfolded. The Pelham saga, consisting of Pelham I and Pelham II, has played a pivotal role in shaping the discourse around these terms within the European Union’s legal framework.
Pelham I, officially known as Pelham GmbH v. Hütter and Schneider-Esleben (C-476/17), laid the foundation for the subsequent legal disputes. Readers can read more about this case here at a previous post at The IP Press where Dr. Charu Srivastava dissects the issues surrounding the case in detail.
Pelham II: The Ongoing Debate
Pelham II, the sequel to Pelham I, brings forth new questions regarding the concept of ‘pastiche’ within the framework of copyright law. The case, officially known as Pelham GmbH and Others v. Ralf Hütter and Others (C-476/17), was referred to the CJEU by the German Federal Court of Justice (Bundesgerichtshof) and concerns the use of a two-second sample from Kraftwerk’s “Metall auf Metall.”
Key Issues in Pelham II:
1. Pastiche and Copyright Exceptions: Pelham II focuses on whether the exception for ‘pastiche’ within the InfoSoc Directive (Article 5(3)(k)) can be considered a catch-all provision for various artistic treatments of pre-existing works, including sampling.
2. Restrictive Criteria: The case also raises questions about whether restrictive criteria, such as the requirement of humour, imitation of style, or homage, should apply to the concept of ‘pastiche’ within copyright law.
3. Intention vs. Recognizability: An essential issue in Pelham II is whether the use “for the purpose” of pastiche requires an intention on the part of the user or if recognizability as a pastiche is sufficient.
Parody vs. Pastiche vs. Caricature
To navigate this discussion effectively, it’s crucial to distinguish between ‘parody,’ ‘pastiche,’ and ‘caricature.’ While these terms may share some similarities, they have distinct characteristics and serve different artistic purposes.
1. Parody: Parody involves taking an original work and transforming it in a way that mocks, critiques, or provides a humorous commentary on the original. It often adopts a critical stance towards the source material and aims to create a new work with a distinct message while referencing the original.
2. Pastiche: Pastiche, on the other hand, is closer to imitation than parody. It involves borrowing elements from an original work to create something new but does not necessarily aim to critique or mock the source material. Pastiche relies more on imitation and pays homage to the original work’s style or themes.
3. Caricature: Caricature involves exaggerating or distorting the features of a subject, often for comedic or satirical purposes. While caricature can be used in parody, it can also stand alone as an artistic expression.
These definitions highlight the nuanced differences between these terms, which is essential for determining their legal implications.
The legal debate surrounding these terms is not merely semantic; it has significant implications for copyright law. In the EU, Article 5(3)(k) of the InfoSoc Directive provides exceptions for the use of copyrighted material for purposes such as parody, caricature, and pastiche. These exceptions play a crucial role in balancing the rights of copyright holders with freedom of expression and artistic creativity.
In the CJEU’s ruling in Deckmyn and Vrijheidsfonds, C-201/13, Advocate General Cruz Villalón argued that ‘parody,’ ‘caricature,’ and ‘pastiche’ all have the effect of derogating from the copyright of the original work. However, this does not mean that these terms can be used interchangeably or that they are subcategories of ‘parody.’
The Importance of Distinction
The distinction between these terms matters because they each represent different ways in which individuals exercise their freedom of expression and engage in a creative dialogue with existing works. To conflate them would risk blurring the boundaries between these distinct artistic expressions.
For instance, ‘parody’ serves the purpose of critique and commentary, while ‘pastiche’ leans more towards homage and imitation. ‘Caricature’ employs exaggeration and distortion to create humour or satire. Combining these terms under ‘parody’ would oversimplify the complex landscape of artistic expression and limit the protection of each form of creativity under the law.
Uniform Interpretation and Application
It is essential to recognize that ‘parody,’ ‘caricature,’ and ‘pastiche’ are all autonomous concepts of EU law. This means that they should receive a uniform interpretation and application throughout the EU territory, aligning with the objectives of the InfoSoc Directive.
In a recent decision by the Italian Supreme Court, the concept of ‘parody’ was equated with ‘quotation’ for the purposes of criticism or review. This interpretation aligns with the spirit of the InfoSoc Directive, where the exercise of freedom of expression involves engaging in a ‘dialogue’ with earlier works.
Furthermore, the fair balance mandate plays a critical role in ensuring that the use of third-party works for parody, caricature, or pastiche is subject to limitations. The CJEU has emphasized that the protection of intellectual property is not absolute, and the three-step test in Article 5(5) of the InfoSoc Directive contributes to this balance.
From an international perspective, these concepts, including ‘parody,’ ‘caricature,’ and ‘pastiche,’ could be seen as sub-sets of ‘quotation’ under Article 10(1) of the Berne Convention. This perspective recognizes that these forms of artistic expression have historical and cultural significance beyond EU borders.
The Italian Supreme Court’s identification of a ‘fair balance’ mandate as a general principle of EU law highlights the growing influence of EU law principles in shaping the interpretation of copyright law. This includes the principle of proportionality and its connection to the fair balance mandate.
In Indian law and jurisprudence, the concepts of ‘parody,’ ‘pastiche,’ and ‘caricature’ lack explicit definitions under the Copyright Act, 1957. Nevertheless, Indian courts have examined these concepts within the context of copyright law, typically invoking principles of fair dealing and fair use.
Parody and criticism in Indian copyright and trademark law challenge the boundary between creative critique and imitation while safeguarding the rights of copyright and trademark holders, allowing freedom of expression. In the Civic Chandran case, the court clarified that parody for critical purposes constitutes fair dealing, provided it meets a three-condition test, considering the amount used, the purpose, and competition likelihood with the original work. Additionally, the intent of the parodist, especially for commercial exploitation, can lead to copyright infringement.
Under the Indian Copyright Act, fair use exemptions are granted for criticism and review, as long as there’s no intent to compete unfairly or derive improper profits.
Several cases shed light on these issues:
1. Super Cassettes Industries Ltd. v. MySpace Inc. & Anr: This case dealt with copyrighted sound recordings on MySpace, emphasizing the need to balance copyright protection with freedom of expression. The court ruled that hosting user-generated content, including parodies or pastiches, doesn’t automatically render the platform liable for copyright infringement.
2. ICC Development (International) Ltd. v. Arvee Enterprises & Anr. (2003 (26) PTC 245 (Del)): This Delhi High Court case involved a caricature of cricketer Sachin Tendulkar on a cricket ball’s packaging label. The court held that the caricature imitated Sachin Tendulkar and amounted to passing off, focusing on caricature within trademark and image rights.
3. R.G. Anand v. Deluxe Films and the TATA Greenpeace Case: While these cases don’t explicitly address ‘parody,’ ‘pastiche,’ or ‘caricature,’ they established the principle of fair dealing in Indian copyright law. They held that using copyrighted material for criticism, review, or reporting current events with proper attribution could constitute fair dealing, providing a legal basis for some forms of parody and criticism. Parody also serves as a defence in trademark infringement cases, as seen in the TATA Greenpeace Case, where parody was used successfully as a defence under freedom of speech and expression.
Indian law extends defences to parodists against intellectual property infringement, provided the parody doesn’t mutilate or exploit the original work. Judicial precedents guide fair use exemptions for parody, given the absence of specific legislation. Privacy and moral rights of owners must also be considered in parody and satire cases.
While these cases offer insights into how Indian courts approach ‘parody,’ ‘pastiche,’ and ‘caricature,’ it’s essential to note that Indian law lacks comprehensive provisions or specific jurisprudence on these concepts. As a result, outcomes depend on specific circumstances, relying on broader copyright principles. This area of law in India continues to evolve, potentially gaining further clarity through future cases or legislative amendments addressing these nuanced forms of creative expression.
Questions Submitted to CJEU
The recent referral to the CJEU raises several crucial questions regarding the interpretation of the pastiche exception in Article 5(3)(k) of the InfoSoc Directive:
1. Is the exception for pastiche a catch-all provision for artistic treatments of pre-existing works, including sampling? The answer is likely to be no, as this would oversimplify the concept of pastiche.
2. Do restrictive criteria, such as the requirement of humour, imitation of style, or homage, apply to the concept of pastiche? While some criteria may apply, they should be developed carefully and not overly restrict the concept.
3. Can the pastiche exception be understood as a general exception for artistic freedom? Again, the answer is expected to be no, considering previous CJEU decisions.
4. Does the use ‘for the purpose’ of pastiche require an intention on the user’s part, or is recognizability as a pastiche sufficient for someone aware of the copyright object referred to? Recognizability should be sufficient, as creativity and expression should not be subject to strict, formal criteria.
The debate surrounding ‘parody,’ ‘pastiche,’ and ‘caricature’ in the context of copyright law is complex but crucial for preserving artistic freedom and balancing the rights of creators and copyright holders. While these terms may share common ground, they represent distinct forms of creative expression, each deserving of its own legal recognition and protection.
The CJEU’s upcoming decision in the Pelham II case will play a pivotal role in clarifying the legal status of these terms within the EU, setting a precedent for the future of copyright law and artistic expression in the digital age. It is essential that the court maintains a nuanced and balanced approach to ensure that artists and creators can continue to engage in meaningful dialogue with existing works while respecting the rights of copyright holders.
The Pelham saga, encompassing Pelham I and Pelham II, represents a crucial juncture in the European copyright debate, especially regarding the treatment of ‘parody,’ ‘pastiche,’ and ‘caricature.’ While Pelham I set some legal precedents by acknowledging the potential defence of ‘parody’ in copyright cases, Pelham II delves deeper into the nuances of ‘pastiche’ and the criteria that should apply to these exceptions.
The pending decision in Pelham II will not only affect the outcome of this specific case but will also shape the broader landscape of copyright law in the EU. It will provide guidance to creators, artists, and copyright holders on how to navigate the complex terrain of artistic expression and copyright protection in the digital age.
 Civic Chandran and Ors. v C. Ammini Amma and Ors., Manu/KE/0675/1996
 M/s Blackwood and Sons Ltd. and Others vs. A.N. Parasuraman and Others, AIR 1959 Mad 410
 TATA Sons Ltd. v. Greenpeace International & Anr, 178 (2011) DLT 705, para 40-44.