Pastiche before the CJEU: Advocate General’s opinion - EU Design Dispute: Decathlon’s Easybreath snorkelling mask

Pastiche before the CJEU: Advocate General’s opinion

The recent opinion of Advocate General Emiliou in the Pelham II case (C-590/23) could signal a shift in how “pastiche” is treated as an exception under European copyright law.

The dispute dates back to 1997, when hip-hop producer Moses Pelham incorporated a fragment of the Kraftwerk song 'Metall auf Metall' (1977) into his own song 'Nur mir'. Since then, the case has gone through national and European courts. In 2019, the Court of Justice of the European Union (CJEU) ruled that the use of a recognisable 'sample' is subject to the phonogram producer's right of reproduction under Article 2(c) of the Information Society Directive (2001/29/EC), unless an exception applies. In this second CJEU hearing, the German Federal Court (BGH) is asking whether, and under what conditions, the 'pastiche' exception — as set out in Article 5(3)(k) of the same directive — can legitimise such artistic use. This provision allows Member States to establish exceptions for the use of protected works for the purposes of caricature, parody or pastiche. However, the directive does not define the latter term, leading to legal uncertainty across the Union.

In his opinion, the Advocate General proposes a uniform and autonomous interpretation of the concept. He defines it as an artistic creation which recognisably imitates the style or aesthetic language of another work without fully reproducing it or intending to deceive. A pastiche must clearly differ from the original work and demonstrate an intention to refer to it. Unlike parody, it does not require the inclusion of humour, critique or mockery.

For instance, imagine a contemporary composer creating a new piece of music that is openly inspired by Beethoven's style. If this new piece includes a short, recognisable fragment from one of Beethoven's symphonies as a tribute, within a clearly imitative stylistic framework, it could be considered a pastiche under this definition. However, if that same fragment is used with no artistic or referential link, for example as a rhythmic base in an electronic track, it would fall outside the scope of the exception.

Therefore, the Advocate General rejects the idea that pastiche could serve as a general justification for any type of creative reuse, such as remixes, memes, mashups, or music sampling. Such practices are becoming increasingly common in contemporary digital creation, but would only be covered if they met the formal and substantive requirements of a recognisable, stylistically coherent imitation.

This case has significant implications for balancing protection and creation within the field of intellectual property. In practice, the current legal framework grants rightsholders almost absolute control over the use of even the smallest fragments of their works, which makes creative reuse particularly challenging in areas such as music, audiovisual media and user-generated content on social platforms.

The Advocate General warns that this approach may conflict with Article 13 of the Charter of Fundamental Rights of the European Union, which guarantees freedom in the arts. While acknowledging that copyright is a legitimate means of protecting creativity and investment, the Advocate General points out that it must not hinder new forms of cultural expression unnecessarily. Currently, the system offers little scope for reuse beyond the limited contexts of parody, quotation, or pastiche, which could stifle artistic innovation.

Lastly, a legislative reform is suggested in the medium term. This could involve introducing a general exception for the artistic reuse of non-substantial fragments, implementing compulsory licensing schemes for certain creative uses, or establishing mechanisms to assess the balance between authors' rights and the cultural value of new works. Such measures would help to align the European framework more closely with the technological and cultural realities of the 21st century, while safeguarding the legitimate interests of rights holders.

EU Design Dispute: Decathlon’s Easybreath snorkelling mask

On 4 June 2025, the General Court of the European Union delivered its ruling on cases T-1060/23 and T-1061/23, which concerned an appeal filed by the German company Delta-Sport Handelskontor GmbH against the French company Decathlon.

The case involved two Community designs that Decathlon registered in 2013 and 2014 for its Easybreath snorkelling mask: one in colour (no. 2340224-000) and one in black and white (No. 2526699-0001). Delta-Sport sought to invalidate both registrations on two grounds: first, that the design features were dictated solely by the product's technical function (Article 8(1) of Regulation No. 6/2002), and secondly, that the designs lacked individual character due to prior disclosures, including patents and utility models previously filed by Decathlon itself (Article 6).

The European Union Intellectual Property Office (EUIPO) rejected the application to invalidate the designs, on the basis that they reflected aesthetic choices rather than purely technical considerations. It also stated that the differences from earlier disclosures were sufficient to create a different overall impression for the informed user.

Delta-Sport appealed against the decision to the General Court, which upheld the EUIPO’s assessment. The Court noted that certain design elements, such as the oval frame and “X”-shaped strap, were not solely dictated by technical requirements, as alternative designs could fulfil the same function. This demonstrated the existence of creative freedom, which made Article 8(1) inapplicable.

Regarding individual character, the Court concluded that the designs created an overall impression that differed from earlier disclosures. It identified specific differences in the shape of the frame, the design of the strap, colour schemes, the structure of the snorkel cap, the presence of a notch at the nose and the shape of the inner skirt. Taken together, these elements were sufficient to meet the requirements of Article 6 of the Regulation.