THE AESTHETICS OF BORROWING: REMIX, PARODY AND PASTICHE BETWEEN ARTISTIC DIALOGUE AND ALGORITHMIC FILTERING

Introduction

Contemporary culture is increasingly a culture of reuse. Sampling, fan videos, mash-ups, memes, reaction videos and digital collages transform existing works and return them to circulation in new contexts. Lessig (2008) describes this shift as a move from a “read-only” to a “read/write” culture, while Jenkins (2006) links it to participatory media and Shifman (2014) shows how memes develop through repeated imitation and variation. Reuse is therefore not merely copying; it has become a common way of producing new cultural meaning.

The practice itself is older than digital media. Literary and art theory has long treated parody, travesty and pastiche as forms of secondary creation (Genette, 1997), and Dyer (2007) emphasizes that pastiche invites audiences to recognize imitation as imitation. What has changed is the infrastructure: large platforms now mediate the creation, circulation and visibility of such works, so platform copyright rules increasingly shape which forms of reuse can reach an audience.

In the European Union, the central rule is Article 17 of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (CDSM Directive). Online content-sharing service providers (OCSSPs) may be directly liable for user uploads unless they obtain authorization or satisfy the best-efforts conditions in Article 17(4), including preventing future availability of notified works. At scale, these duties strongly encourage automated content recognition (Husovec & Quintais, 2021). At the same time, Article 17(7) requires that users remain able to rely on quotation, criticism, review, caricature, parody and pastiche.

This creates a persistent tension between enforcement and cultural practice. Automated systems identify overlap with reference material, while lawful quotation, parody and other transformative uses often depend on precisely that recognizable overlap. The problem is especially acute for pastiche, whose autonomous meaning under EU law remained unsettled on 31 March 2024. The article therefore asks how Article 17 can protect rightholders without allowing similarity-based filtering to suppress uses that require contextual legal assessment.

Method

The study combines cultural analysis with doctrinal legal analysis. It draws on remix theory (Jenkins, 2006; Lessig, 2008; Navas, 2012; Shifman, 2014) and theories of parody and pastiche (Genette, 1997; Dyer, 2007), and examines Article 17 of the CDSM Directive, Article 5(3) of Directive 2001/29/EC, the Commission’s 2021 guidance and the Digital Services Act. The legal analysis focuses on Deckmyn (CJEU, 2014), Pelham (CJEU, 2019), Poland v Parliament and Council (CJEU, 2022), and the preliminary reference in Case C-590/23 lodged in 2023. Academic commentary is used to situate the doctrinal issues (Senftleben, 2019; Quintais et al., 2019; Jütte & Quintais, 2021; Quintais & Schwemer, 2022).

The comparison asks whether the contextual criteria used to distinguish lawful creative reuse from reproduction can be meaningfully applied by the preventive mechanisms encouraged by Article 17. The study is doctrinal and theoretical rather than empirical; examples of remix genres are used only to clarify the legal argument.

Results

Remix as dialogue with the source

Remix theory defines remix through its relation to an earlier work. Navas (2012) distinguishes extended, selective and reflexive remixes, all of which remain intelligible through a recognizable source. Shifman (2014) similarly shows that memes acquire meaning through shared recognition of a template. Genette (1997) treats parody and pastiche as hypertextual practices, while Dyer (2007) stresses that pastiche displays rather than conceals its borrowing.

These accounts suggest three features of creative reuse: an identifiable source, a transformation, and a meaningful relation to the source – such as homage, irony, critique, humor or play recognizable to an informed audience. The third element separates remix from mere copying. A re-uploaded film scene reproduces; the same scene re-edited with new music and captions may create a new commentary, even though both contain protected material.

Article 17: licensing, filtering and staying down

Article 17 addresses the perceived “value gap” between the economic value platforms derive from protected works and remuneration to rightholders (recital 61). An OCSSP communicates user uploads to the public (Article 17(1)) and cannot rely on the ordinary hosting safe harbor (Article 17(3)). Without authorization, it must satisfy the cumulative conditions of Article 17(4), subject to the user safeguards in Article 17(7)–(9) (Table 1). In practice, points (b) and (c) support upload filtering and notice-and-stay-down mechanisms (Quintais & Schwemer, 2022).

Table 1. Obligations and safeguards under Article 17 and their significance for remix

Provision	Content	Significance for remix
Art. 17(4)(a)	Best efforts to obtain an authorization	Licenses rarely cover the variety of user-generated content (Senftleben, 2019)
Art. 17(4)(b)	Best efforts to ensure the unavailability of works identified by rightholders	In practice, upload filtering through automated content recognition
Art. 17(4)(c)	Expeditious removal upon notice and best efforts to prevent future uploads	Notice-and-stay-down: re-uploads and similar uploads are matched automatically
Art. 17(7)	Lawful uses must remain available; mandatory exceptions for quotation, criticism, review, caricature, parody and pastiche	Legal basis for remix on platforms
Art. 17(8)	No general monitoring obligation	Limits the scope of filtering
Art. 17(9)	Complaint and redress mechanism with human review	Main forum in which a creative dialogue can be assessed

Note. Compiled by the author on the basis of Directive (EU) 2019/790.

 

For remix culture, two consequences follow. Licensing cannot realistically cover every form of user-generated reuse, given fragmented rights and licensing practices (Senftleben, 2019). In addition, preventive enforcement operates at a scale that makes prior human assessment of every upload impossible. Although the Directive is technology-neutral, automated recognition is the practical response (Husovec & Quintais, 2021). Such systems detect overlap with reference files but do not themselves determine purpose, context or meaning.

Safeguards for users: Article 17(7)–(9) and Poland v Parliament and Council

The exceptions listed in Article 17(7), optional under Article 5(3) of Directive 2001/29/EC, became mandatory for uploads to OCSSPs (Quintais et al., 2019). Together with the ban on general monitoring and the requirement of human review of complaints, they form the counterweight to the preventive obligations.

In Poland v Parliament and Council (CJEU, 2022), Poland sought the annulment of points (b) and (c) of Article 17(4) as incompatible with freedom of expression. The Court dismissed the action, holding that the limitation of Article 11 of the Charter was justified by the accompanying safeguards. However, a filtering system that might not distinguish adequately between lawful and unlawful content would be incompatible with freedom of expression (CJEU, 2022, para. 86), and providers cannot be required to block content whose unlawfulness would require an independent assessment in the light of exceptions and limitations (CJEU, 2022, para. 90).

The Commission’s guidance distinguishes manifest infringement from cases requiring closer examination. Although non-binding, it indicates that automatic blocking should generally be reserved for manifestly infringing uploads, while other cases should remain available pending review (European Commission, 2021). This approach reflects the Court’s insistence in Poland v Parliament and Council that filtering cannot lawfully decide cases whose unlawfulness depends on applying exceptions and limitations. National implementation nevertheless differs. Germany’s UrhDaG, for example, combines presumptively permitted minor uses with a mechanism allowing users to flag uploads as legally permitted, illustrating one attempt to protect lawful uses before a complaint is resolved.

Pastiche before a definitive CJEU interpretation: from Pelham to Case C-590/23

Deckmyn offers the clearest CJEU definition among the exceptions relevant to remix: parody must evoke an existing work while being noticeably different from it and constitute an expression of humor or mockery (CJEU, 2014, para. 20). Pastiche, by contrast, remained undefined at EU level. Pelham (2019), which concerned a two-second Kraftwerk sample, did not resolve that concept, but it did emphasize that quotation presupposes an intention to enter into “dialogue” with the quoted work. This language is important because it shifts attention from physical similarity alone to the relationship created by reuse.

The uncertainty surrounding pastiche became explicit when the Bundesgerichtshof referred Case C-590/23 to the Court of Justice in September 2023. The dispute again concerns sampling and asks, in substance, whether pastiche is a broad exception capable of covering artistic engagement with an earlier work and what criteria should define it (CJEU, 2023). As of 31 March 2024, the Court had not answered those questions. Any account of EU law at that date must therefore treat the meaning of pastiche as unsettled rather than attribute to the Court a later interpretation.

For cultural analysis, the pending reference is significant because its questions expose the same problem identified by remix theory: some forms of reuse derive meaning from recognizable engagement with a source. Whether EU law ultimately classifies that engagement as pastiche cannot be assumed in advance. Table 2 therefore compares established law on parody and quotation with the unresolved position of pastiche as it stood on 31 March 2024.

Table 2. Creative reuse in cultural theory and EU copyright law as of 31 March 2024

Criterion	Cultural theory	Parody: Deckmyn (2014)	Pastiche: position as of 31 March 2024
Relation to the source	Evokes an identifiable source (Navas, 2012; Shifman, 2014)	Evokes an existing work	No autonomous CJEU definition; Case C-590/23 asks whether pastiche covers artistic engagement with pre-existing material, including sampling
Transformation	New context, genre, medium or combination	Noticeably different from the work	Open question: a broad artistic-engagement clause or narrower limiting criteria?
Meaning	Homage, irony, critique, humor or play (Genette, 1997; Dyer, 2007)	Expression of humor or mockery	Open question: must pastiche involve humor, stylistic imitation or tribute?
Perspective	Informed audience	Not specified; application must strike a fair balance with freedom of expression	Open question: user intention, or recognizability to a person familiar with the source?

Note. Compiled by the author on the basis of CJEU (2014, 2019, 2023), Genette (1997), Dyer (2007), Navas (2012) and Shifman (2014).

 

Discussion

The analysis reveals a structural mismatch between contextual copyright exceptions and similarity-based enforcement. EU law does not treat every reuse of protected material as unlawful: quotation and parody, for example, depend on purpose, transformation and context. Automated recognition, by contrast, begins with similarity. The very elements that make a remix legible to an audience may therefore be those that trigger a platform match.

Read with Poland v Parliament and Council, this mismatch has a clear legal consequence. Providers cannot be required to block material whose unlawfulness can be established only after an independent assessment of exceptions and limitations (CJEU, 2022, para. 90). A match can identify a copyright issue, but it cannot by itself determine whether a contextual defense applies. Figure 1 summarizes the resulting normative decision path.

Figure 1. Decision path for potentially lawful remix uploads under Article 17 after Poland v Parliament and Council: a model proposed by the author

 

User upload (remix, parody, pastiche)

Match with a reference file?

No

Published

Yes

Manifestly infringing?

Yes

Automated blocking

No

Stays online pending review

Complaint and redress with human review (Art. 17(9)): purpose, context and applicable exception

Lawful parody or pastiche: available (Art. 17(7))

Infringing reuse: removed

 

Note. Proposed by the author on the basis of Article 17 of Directive (EU) 2019/790, European Commission (2021), CJEU (2019) and CJEU (2022). The figure shows a normative decision path, not a description of current platform practice. Uploads whose unlawfulness would require an independent assessment cannot be blocked on the basis of a match alone (CJEU, 2022, para. 90).

The cultural stakes extend beyond individual removals. Where matching routinely leads to blocking or demonetization, creators may avoid recognizable quotation or alter sources simply to escape detection. Such adaptation would favor material that is technically difficult to match over forms that openly engage with earlier works, even though visible borrowing may be central to the aesthetics of pastiche and remix (Dyer, 2007).

Three practical implications follow. First, the Commission’s criterion of manifest infringement should function as a minimum safeguard: automatic blocking is most defensible for identical or near-identical copies, not for excerpts combined with new material (Quintais et al., 2019; European Commission, 2021). Second, Article 17(9) review should be genuinely human and capable of considering context; user declarations, such as those contemplated by the German UrhDaG, can help identify potentially lawful uploads before removal. Third, the Digital Services Act supplements this framework through duties concerning fundamental rights, complaint handling and transparency (Quintais & Schwemer, 2022). More detailed reporting on reversals involving parody, quotation or pastiche would also make over-blocking easier to evaluate empirically.

The study is limited by its doctrinal and theoretical method: it does not measure actual platform blocking or complaint outcomes. Its conclusions concern the design of Article 17 and the type of assessment required by EU law. Further research should examine platform data and national case law, especially the treatment of sampling and other forms of creative reuse after the Court clarifies the scope of pastiche.

In conclusion, Article 17 organizes platform copyright enforcement around licensing, prevention and rapid response to rightholder notices, while creative reuse often derives meaning from a recognizable relationship with earlier works. As of 31 March 2024, EU law supplied important safeguards but no definitive CJEU definition of pastiche. Deckmyn, Pelham and Poland v Parliament and Council nevertheless point in a consistent direction: lawful use may depend on context that automated matching cannot determine. A reference-file match should therefore be treated as a trigger for legal assessment rather than as a conclusive finding of infringement. Protecting remix culture under Article 17 requires restrained automated blocking, meaningful human review and transparent procedures capable of preserving lawful expression alongside effective copyright enforcement.

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