The Person Familiar with the Existing Work (PFEW) in Pelham II: A Workable Copyright Standard?

The Court of Justice’s ruling in Pelham II (Case C-590/23) requires national courts to assess whether a new creation constitutes a pastiche under Article 5(3)(k) of Directive 2001/29/EC from the perspective of a person familiar with the existing work (the PFEW), rather than by examining the subjective intention of the pasticheur. However, the Court does not define the characteristics of this hypothetical person. Similar personae have been developed in patent, trademark and design law, where they perform specific functions in assessing the subsistence and infringement of rights. Examining how these hypothetical persons are constructed helps to identify the characteristics of the PFEW and to develop a structured test that operationalises the substantive criteria for pastiche from that person’s perspective. This article develops the concept of the PFEW and argues that they must have knowledge of the reproduced subject matter, together with knowledge of the author and the genre from which the existing work originates, sufficient to identify that work’s characteristic elements but falling short of expert knowledge. That person must also be familiar with the artistic practices and techniques used to create a pastiche.