The Curse of Originality and the Aesthetics of Retrowave: Ending the Same Old Copyright War

Abstract Courts have long grappled with determining the originality and relevant infringement issues of musical works across various genres. The same old ‘war’ between copyright regulation and music creation has extended to retrowave music since 2021, as seen in the NinjA Cyborg v. Rammstein lawsuit. Retrowave is a microgenre distinguished by its aesthetics of retrospection, nostalgia, and retrofuturism, and by ‘music references’ to 1980s films and arcade games. This aesthetic paradox does not appear to be readily reconcilable with the originality requirement in copyright law, which in turn acts like a ‘curse’ that entangles musicians in protracted litigation. Through the lens of the NinjA lawsuit, this piece examines the complicated interplay between copyright law and retrowave music creation – specifically, between the originality requirement and retrowave aesthetics. It argues that current juridical practice has not adequately accounted for retrowave aesthetics in determining originality; the two are not inherently incompatible but rather amenable to reconciliation. Accordingly, the piece proposes concrete suggestions aimed at reconciling the two, with a further view to enabling copyright law to fulfil its commitment to protecting original expression and fostering the vitality of music creation. While the analysis focuses primarily on EU and French copyright law, under which the NinjA case is adjudicated, it also compares relevant laws and cases from Germany, the US, and the UK. The arguments developed are applicable within these legal frameworks and offer a basis for ending the same old copyright war that affects not only retrowave but also other musical genres.