Creative Borrowing or Infringement of Rights? The Intersection of Pastiche and Parody Exceptions and Trademark Infringement

Creative content is at the core of modern business. Companies, entrepreneurs, and public figures are making even bolder use of brands, visual communications, and cultural references in their marketing. At the same time, drawing the line between permissible creative borrowing and infringement of rights continues to raise questions.

In spring 2026, the Court of Justice of the European Union handed down its long-awaited judgment on the pastiche exception. The judgment clarified when the creative use of an existing work (e.g., sampling) may be permissible without the permission of the copyright holder. At the same time, case law reminds us that freedom under copyright law does not necessarily mean freedom from trademark infringement.

In business, it is therefore not enough to assess plans solely from a copyright perspective. Instead, plans should be examined comprehensively from an intellectual property perspective, including trademark considerations.

Protection for a Sample?

In Case C-590/23 (Pelham), the issue was whether phonogram producers had the right to prohibit electronic music producers from sampling an approximately two-second rhythmic sequence from the 1977 song Metall auf Metall in the song Nur mir, released in 1997, or whether the pastiche exception permitted that use. The Court of Justice of the European Union held that:

• The exception for pastiche does not have a catch-all nature and does not cover all artistic interaction with earlier works.
• Pastiche covers creations that evoke one or more existing works but are noticeably different from them, and that use distinctive elements protected by copyright to participate in a recognizable artistic or creative dialogue.
• An artistic dialogue may take the form of stylistic imitation, homage, or humorous or critical interaction.
• The exception does not cover concealed imitation or plagiarism.
• Legal assessment does not require proof of subjective intent. It is sufficient that persons familiar with the original work can recognize the work’s pastiche character.

The judgment is particularly significant for the music, advertising, and content industries: it confirms that sampling and other creative borrowing may be permissible under the pastiche exception, provided that they constitute to recognizable artistic dialogue and not concealed copying. The judgment is a logical continuation of the judgment concerning the parody exception, C-201/13 (Deckmyn), in which the key conditions for parody were (i) a reference to an existing work, but (ii) a noticeable departure from it, and (iii) the expression of humor or mockery.

Parody Does Not Exempt One from Trademark Infringement

The parody and pastiche exceptions under copyright law have no equivalent in the trademark legislation originating from the EU. For example, Finnish trademark legislation does not recognize parody or pastiche exceptions under which the use of a sign giving rise to a likelihood of confusion or otherwise infringing trademark rights could be considered permissible.

The Market Court decision MAO:374/16 concerned an air freshener marketed by the Finnish music group Justimus that closely resembled the well-known tree-shaped WUNDER-BAUM air freshener, as well as the appearance of a character dressed in a WUNDERBOY tree costume in the WUNDERBOY music video. The air fresheners used a similar tree-shaped silhouette, a similar font, a red background, and white text. The Market Court held that the group had infringed trademark rights both through the air freshener and through the WUNDERBOY tree-costumed character appearing in the music video.

Although the activity may have been motivated by a creative or parodic purpose, the sale of physically similar products bearing signs giving rise to a likelihood of confusion constituted trademark infringement. The decision illustrates that parodic expression recognized in copyright law does not in itself eliminate potential trademark infringement.

Artistic Expression or Trademark Infringement of a Luxury Brand? 

The decision of the Paris court RG 23/15690 (3 June 2026), issued in summer 2026, concerned the activities of an art gallery called Le Bidon français, in which Hermès’s registered trademarks were used without permission on various products. The art gallery sold products such as industrial canisters, fire extinguishers, chairs, skateboards, and figurines to which Hermès trademarks had been affixed, including the word mark ”HERMES” and a figurative mark consisting of the letter H. The products ranged in price from EUR 60 to EUR 449, and were sold through websites and Instagram. The defendant invoked freedom of artistic expression and argued that the products were art that “turns well-known brands upside down.” The court held that the use constituted trademark infringement. The defense of artistic expression was rejected because the marks were used for the commercial marketing and sale of the products, hashtags such as ”#hermes” were used in Instagram marketing, and the product names referred directly to the brand. The use was considered to create the impression of a commercial connection between Hermès and the art gallery.

Accordingly, the defense of artistic expression does not protect the use of a sign when that use is primarily commercial.

Managing Risks Already at the Planning Stage

The Court of Justice of the European Union’s judgment on pastiche opens up new possibilities for artistic expression, but the Wunderbaum and Hermès cases remind us that trademark protection remains intact regardless of how creative the use is considered to be. The message is clear: creativity is a competitive advantage, but its safe use requires legal foresight.

Copyright and trademark law are two separate systems in which the applicable rules and defenses are independent of one another. Every company and entrepreneur who, without the express permission of the rights holder, refers to third-party brands or creations must assess both systems separately.

Before launching a new product, campaign, or creative concept, it is therefore advisable to:

• already at the concept stage, ascertain whether the product, campaign, or content contains references to third-party creations (e.g. music, images, design) or brands (e.g. names, logos, signs, product shapes);
• assess whether a reference to a copyright-protected creation requires the rights holder’s permission or whether the pastiche or parody exception applies;
• assess the impact of trademarks separately and examine whether the planned content includes registered or established trademarks;
• assess the commercial nature of the use (does the content create the impression of a commercial connection with the owner of another brand, and are trademarks used in product names, hashtags, or marketing materials in a manner suggesting collaboration), because the defense of artistic expression fails if the use is primarily commercial;
• assess whether any exception or defense under trademark law applies; and
• document the stages and purpose of the planning work.

A Safe Landing on the Market

The pastiche or parody exceptions under copyright law do not exempt one from trademark infringement, nor do exceptions under trademark law exempt one from copyright infringement. It is therefore advisable to seek a preliminary assessment from a specialist who can help identify risks that may not be apparent in an internal process. A preliminary assessment is considerably less expensive and less time-consuming than litigation, withdrawing products from the market, or changing a global campaign.

A proactive IPR assessment before launches is effective risk management: it helps avoid subsequent disputes, saves time and costs, and protects the company’s reputation. At its best, an IPR assessment is not an obstacle to creativity, but a tool that helps bring creative ideas to market safely.

Our firm’s IPR team assists companies with matters at the intersection of copyright and trademark law, whether the issue concerns a preliminary assessment, obtaining protection, defending rights, or countering infringement allegations. If the themes of this article have raised questions in relation to your business, we would be pleased to discuss them with you.