Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 September 2023 – CG and YN v Pelham GmbH and Others
(Case C-590/23, Pelham)
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Applicant and appellant in the appeal on a point of law: CG, YN
Defendant and respondent in the appeal on a point of law: Pelham GmbH, SD, UP
Questions referred
1. Is the provision limiting use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC 1 a catch-all clause at least for artistic engagement with a pre-existing work or other object of reference, including sampling? Is the concept of pastiche subject to limiting criteria, such as the requirement of humour, stylistic imitation or tribute?
2. Does use ‘for the purpose of’ pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC require the determination of an intention on the part of the user to use copyright subject matter for the purpose of a pastiche, or is it sufficient for the pastiche character to be recognisable for a person familiar with the copyright subject matter who has the intellectual understanding required to perceive the pastiche?
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1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).