Germany’s New Copyright Exception For Pastiche Applied For First Time
from the long-overdue-but-good-to-see dept
Although overall the EU Copyright Directive is bad news for the digital world because of things like its need for the use of automated upload filters, it does contain a few glimmers of good sense. For example, it rectifies a failing of the previous EU legislation in this area, the 2001 Infosec Directive. The 2001 law allowed Member States to implement an exception or limitation for the use of copyrighted material “for the purpose of caricature, parody or pastiche”. Because it was vague and optional, this exception was not widely implemented by EU countries.
The EU Copyright Directive addresses that by making it mandatory to allow for caricature, parody, and pastiche uses. However, even this improvement is flawed, since it only applies to online services. Member States still have the option to extend that exception, but once more it is a vague and unsatisfactory situation. An important case in Germany, discussed in depth on the Kluwer Copyright Blog by Susan Bischoff, provides some important insights into what the copyright notion of pastiche now means in the EU context. The same blog has another, more general exploration of the topic.
Bischoff’s post goes into the details of the German case, but reduced to its essentials, a “kitschy” image of a cherry tree by a London-based digital concept artist made a modified appearance in a painting by a Berlin-based German painter. The former claimed copyright infringement had taken place. For the first time, the court applied a new section of German copyright law that permits use of material for the purposes of caricature, parody, and pastiche. It considered whether the use of the cherry tree motif could be considered a pastiche of the original, and found that it was indeed a permitted use. Bischoff’s blog post explains:
The judges conduct a detailed assessment of the painting, analyzing its individual components, their interpretation and collage-like composition, as well as the different levels of detail in the painting technique. The court concludes that the cherry tree is not only a background motif but a collage element. With regard to the necessary interaction, the court finds that this “is to be seen in the fact that a typical kitsch picture, which is supposed to offer the consumer something beautiful and attractive, becomes the content of a collage-like representation, which forces it to be viewed in a different, critical context” as “the viewer of the painting puts herself in the position of an elderly person who […] is looking at a panorama in which the vibrant green in the foreground near this person is replaced all around by a gloomy, unreal-looking scenery”.
It’s great that the German judges conducted such a thoughtful and nuanced analysis, and that they affirmed that this incorporation of an element from another work was a pastiche, and therefore permitted. But it is absurd that it has taken over 20 years to fix this bug in the EU copyright legislation, and that something as natural and creative as pastiche was not regarded as a self-evidently legal way to re-purpose existing copyright material.
Follow me @glynmoody on Mastodon. Originally posted to WalledCulture.
Filed Under: copyright, copyright directive, copyright exceptions, eu, germany, pastiche, user rights
Companies: eu
Comments on “Germany’s New Copyright Exception For Pastiche Applied For First Time”
Implications for chatGPT, stable diffusion
An unresolved issue of law is whether art generated by AI violates the copyright of the artists whose work was used to train the model. IANAL, but it appears that there are two opposing precedents: In Ghostbusters vs Huewy Lewis (https://www.rollingstone.com/politics/politics-lists/songs-on-trial-12-landmark-music-copyright-cases-166396/) the court found that just using a similar style of music violated copyright, even though the notes are different. However in the visual arts (in this case) pastiche is exempted from the copyright laws. It will be interesting and have wide ranging effects depending on how this conflict of precedent is resolved.
This of course, ignores two other issues: 1) Can generative art be copyrighted? 2) Is the use of an artist’s work to train a model a fair use like Google books, or does it affect the market value of the original work too much to be fair use?
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If it violates copyright then all art schools and artists are violating copyright, as a large part of learning an art is studying at works by other artists. Also, the common advice to budding authors, read lots of works in the genre you want to write, would be incitement to copyright infringement. Indeed all genres of any form of art are bases on copying elements from the pioneers of the genre.
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It’s basically the “fanart is illegal” argument. And content creators would do well to be careful how they approach that angle. Fans tend not to be fans after their favorite content creator calls them selling buttons at conventions an act of thievery.
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Do you have any evidence of this? ‘Cause the music, film, and book companies have been calling fans thieves for decades, and people still line up to throw money at them (or work for them).
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There’s been ruling recently that it cannot.
There’s a big discussion, but the fact is that all artists train on other artists’ work. The only differences with AI are the speed in which something can be replicated and the accuracy to which that happens. If you look at early Picasso or Dali works, they were basically copying other style they saw. They eventually made their own creative mark of course, but I’m not sure how you prevent an AI training without outlawing the next Picasso.
Same with most other fields – The Beatles started as a cover band, Stephen King imitated his heroes in early short stories, many filmmakers tried recreating their favourite movies. I can understand not wanting an AI to replace actual artists, but I think that “they trained on previous artists’ work” is not the avenue to prosecute.
The "Little Mermaid" case
Another interesting judgment in this context is the Danish Supreme Court judgment regarding the famous “Little Mermaid” statue (ECLI:DK:HJR:2023:BS0000003218 — reported in U 2023.3772 H). BestNetTech has covered it but did not really explain the legal issue in its article.
Basically, it has always been assumed that Danish copyright law contains an exemption for parodies, even though no explicit recognition of this exists in the Copyright Act. This was based on common practice preceding the Copyright Act, the legislative remarks accompanying the act and legal doctrine. The unwritten nature of the parody exemption combined with the mandatory nature of the parody exemption in the DSM Directive has led to the somewhat silly situation that the general parody exemption is not mentioned in the act, while the exemption as it applies to online content-sharing providers is explictly recognized in § 52 c, subsection 10, of the act.
When the Eastern High Court heard the case it decided, to most people’s surprise, that no such unwritten parody exemption existed (ECLI:DK:OLR:2022:BS0000000483 — reported in U 2022.1502 Ø). As an aside, this would lead to the absurd result mentioned in this article that you would be protected by a parody exemption when sharing content through an online content-sharing provider, but not otherwise.
Fortunately, the Supreme Court found that there is a ‘Danish and common Nordic tradition’ of making exemptions for parodies in copyright protection and that — even though the legislator had decided not to include an explicit recognition of this in the Copyright Act when implementing the Infosoc Directive — the exemption had to be interpreted in line with how the term is understood in EU law (p. 3821–22 of the report). Among other things, a benefit of this EU-harmonic interpretation is that ‘parody’ is defined more widely in EU law such that the parody does not need to be a parody of the copyrighted work itself but can also be used to mock something else (p. 3822 of the report citing Case C-201/13, Deckmyn, ECLI:EU:C:2014:2132). Thus, one of the visual works in question in the case — an artistic rendering of the Little Mermaid statue as a zombie — was covered by the parody exemption and did not violate any copyright.
The Supreme Court also found that, even when a work cannot be described as a parody, the rights of the copyright holder have to be weighed against the freedom of expression of the person incorporating the copyrighted work in their speech (p. 3822 of the report citing Neij and Sunde Kolmisoppi v. Sweden, ECLI:CE:ECHR:2013:0219DEC004039712). This idea has been a subject of debate for a long time based on the classic assumption — which I believe also exists in the U.S. — that copyright law is itself an ex ante balancing of rights, and thus does not need to be evaluated on a case by case basis (see Pernille Bruun Andersen, Ophavsret og ytringsfrihed [Copyright and Free Expression] (2018) pt. 1.1). In the particular case, this meant that a photoshop of the Little Mermaid statue wearing a face mask, used to illustrate a newspaper article on the connection between worries about COVID and political alignment, was permissible and thus not a copyright violation.
For context, it should be noted that Danish copyright law does not have a more generalized ‘fair use’ exemption, and thus the existence and scope of more specific exemptions like parody, or more general balancing tests based on free expression, are of high importance.