From Sampling to Generative AI: The Scope of Pastiche after Pelham II

Abstract

Exceptions and limitations play a pivotal role in European copyright law and have been the subject of significant developments in the case law of the Court of Justice of the European Union. In this context, the judgment in Pelham II (C-590/23) is particularly noteworthy. First, it provides long-awaited clarification of the notion of “pastiche” under Article 5(3)(k) of Directive 2001/29/EC by recognising it as an autonomous concept of EU law and by articulating a structured framework governing its application. Secondly, the ruling may have far-reaching implications for the legal treatment of AI-generated outputs within the European copyright framework. This comment examines the Court’s interpretation of pastiche as requiring an artistic or creative dialogue with a pre-existing work that is objectively recognisable, whilst rejecting any requirement of subjective intent on the part of the user. It further analyses the emergence of the “recognisability” criterion in the CJEU’s recent case law and considers the broader implications of the judgment for transformative uses, artistic freedom, and the balancing of fundamental rights in EU copyright law. Particular attention is paid to the relevance of Pelham II for generative AI. Th comment argues that the Court’s flexible conception of pastiche may encompass certain AI-generated outputs, whilst highlighting the continuing importance of the three-step test as a potential limiting principle.