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New Masters: Painter’s Win Clarifies ‘Pastiche’

World Intellectual Property Review

23 Mar 2022

Christiane Stuetzle authored an article for World Intellectual Property Review discussing the significance of the Berlin Regional Court’s ruling that the reference to a pre-existing digital work by means of collage-like integration into a new painted work by German painter Martin Eder is fully permissible as a pastiche and does not constitute a copyright infringement of such pre-existing work.

“On the EU level, there is no case law on the copyright exception for pastiche,” Christiane wrote, noting that “in Germany, to our knowledge, this also is the first judgment on the scope and applicability of the pastiche copyright exception.”

She added: “This judgment is the first ruling for such copyright exceptions since the revision of German copyright law, which came into effect on June 7, 2021, and has ended a legal vacuum caused by a ruling of the Court of Justice of the European Union (CJEU) in an unrelated case (‘Metall auf Metall’, judgment of July 29, 2019). In Metall, the CJEU had declared a provision of the German Copyright Act ‘UrhG’ (its section 24), under the heading ‘free adaptation’, as no longer applicable for formal reason, i.e. because the copyright exceptions and limitations under the EU member states’ national laws have to be based on the exhaustive list mainly provided for under article 5 of the Information Society (InfoSoc) Directive 2001/29/EC.”

“Since the German Copyright Act did not specifically use the term ‘pastiche’ but instead used the term ‘free adaptation’ as the umbrella term for a bundle of copyright exemptions, including pastiche, caricature and parody, the CJEU considered the formalities not to be met and the provision too broad. Following the CJEU’s judgment, section 24 UrhG could no longer be applied. Therefore, the CJEU decision led to a dramatic legal vacuum and unanswered questions as to how the ‘Freedom of the Arts’, which includes the interaction with pre-existing works, could be upheld.”

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