Reposted from Sports. Media and Entertainment Online
By Alexis Fierens and Raf Schoefs
Under Belgian law, a copyrighted work may be used without the authorisation of the author(s) for the purposes of caricature, parody or pastiche. In the absence of any clear guidance on the interpretation of the concept of parody and considering the economic value of many copyrighted works of which the integrity is carefully guarded by their rights holders, parodies have been the subject of many legal proceedings, leading to divergent decisions. For that reason, a clarification of the concept of ‘parody’ by the European Court of Justice of the European Union (“CJEU”) has been long awaited.
On 3 September 2014, the CJEU handed down its judgment in the Deckmyn v. Vandersteen case (C-201/13), in which it defines for the first time the concept of parody, and provides further guidance.
In summary, the main takeaways of the CJEU’s judgement are that:
- the concept of ‘parody’ is an autonomous concept of EU law that must be interpreted uniformly throughout the European Union;
- the concept of ‘parody’ should be determined by considering its usual meaning in everyday language. Hence, the essential characteristics of parody are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery. It becomes immediately clear that the CJEU is considerably less restrictive than most Belgian courts have been so far. Nevertheless a fair balance must be struck between the freedom of expression of the user of a copyrighted work and the legitimate interests of the copyright holders (such as their legitimate interest in ensuring that their work is not associated with a discriminatory message).
At a New Year’s reception held by the Belgian city of Ghent, Mr Deckmyn, a member of the Flemish nationalist partyVlaams Belang, handed out calendars for the year 2011. On the cover page of those calendars appeared a drawing resembling the cover of the comic book ‘Suske en Wiske’, ’ which translates into English as ‘Spike and Suzy’, with the original title ‘De Wilde Weldoener (which may be translated into English as ‘The Compulsive Benefactor’) produced by Willy Vandersteen.
The original drawing is a representation of one of the comic book’s main characters wearing a white tunic and throwing coins to people trying to pick them up. In the drawing which appeared on the cover page of the calendars,, the comic book character was replaced by the socialist mayor of the city of Ghent, and the people who were depicted as being white on the comic book cover, were replaced by people wearing veils and people of colour.
The holders of the copyright in the comic book were of the opinion that the calendar cover infringed their copyright. Consequently, they brought an action before the Brussels Court of First Instance, which ordered Deckmyn to cease the use of the calendars containing the concerned drawing. Deckmyn appealed that decision to the Brussels Court of Appeal, which referred the following questions to the CJEU for a preliminary ruling:
- Is the concept of parody an autonomous concept of EU law?
- If so, must a parody satisfy the following conditions or conform to the following characteristics?
- display an original character of its own (originality);
- display that character in such a manner that the parody cannot reasonably be ascribed to the author of the original work;
- seek to be humorous or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
- mention the source of the parodied work?
- Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?
2. CJEU decision
The CJEU responded to the preliminary questions set out above as follows hereafter.
a. Is parody a concept of EU law or national law?
Under Article 2 of the Directive on harmonisation of copyright and related rights in the information society (2001/29/EC) (“Copyright Directive”), authors, performers and producers enjoy an exclusive reproduction right in relation to certain types of creative work. However, Article 5(3) sets out a list of purposes for which EU member states can provide for exceptions or limitations to the economic rights of the rights holders. Among these is use of a work for the purpose of parody (Article 5(3)(k) of the Copyright Directive ).
The CJEU started its reasoning by stating that any provision of EU law which made no express reference to the law of member states for the purpose of determining its meaning and scope must normally be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, having regard to the context of the provision (in this case parody) and the objective pursued by the legislation in question (in this case Article 5(3)(k)) . The fact that the exception provided for in Article 5(3)(k) was an optional one did not alter this principle.
b. What constitutes parody for the purposes of the parody exception?
The court concluded that as Article 5(3)(k) of the Copyright Directive does not define “parody”, the scope and meaning of this term had to be interpreted in accordance with its usual meaning in everyday language, whilst also taking into account the legislative context in which the term is used, and the purposes pursued by the Copyright Directive. In this regard, the CJEU noted that the essential characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other hand, to constitute an expression of humour or mockery.
The CJEU expressly rejected the notion that parody would require any other conditions to be met in order to be a lawful exception, such as those set out in the Court of Appeal’s questions and inspired by former Belgian case law. Hence, a parody does not need to display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work. Moreover, it is not necessary that it could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself or mention the source of the parodied work.
The CJEU also stressed that the fact that the parody is an exception to the copyright of the author, does not imply that the scope of the parody may be restricted by the conditions set out in the previous paragraph, as they neither emerge from the usual meaning of ‘parody’ in everyday language nor from the wording of Article 5(3)(k) of the Copyright Directive.
c. The exception for parody must strike a fair balance
In the final part of its judgment, the CJEU emphasised that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other hand, the freedom of expression of the user of a protected work who is relying on the exception for parody.
In assessing whether a fair balance is preserved, all circumstances must be taken into account. In this regard, in the context of the Deckmyn v. Vandersteen case, the CJEU also referred to Directive 2000/43/EC which implemented the principle of equal treatment between persons irrespective of racial or ethnic origin and to the Charter of Fundamental Rights of the European Union.
Although the CJEU was not allowed to judge on the merits of the Deckmyn v. Vandersteen case, it provided the Brussels Court of Appeal with clear guidelines. It stated notably that if a parody conveys a discriminatory message (for example by replacing the original characters with people wearing veils and people of colour), the rights holders to the parodied work have, in principle, a legitimate interest in ensuring that their work is not associated with such a message.
3. Questions and comments
Although the CJEU provides useful guidance on the exception for parody, there is still room for debate. In this section we will provide our first thoughts on the CJEU’s judgment and address a few questions that are likely to be raised in the future.
a. Should the concept of parody indeed be interpreted uniformly in the European Union?
The qualification of the concept of parody as an autonomous concept of EU law is in line with earlier case law of the CJEU on the interpretation of copyright exceptions, and does therefore not come as a surprise. One could however question whether the parody is indeed interpreted or should be interpreted in the same way in Belgium as in the United Kingdom or Spain for example. It cannot be denied that the definition of the concept of parody may depend heavily on national culture and traditions.
More surprising is that the CJEU seems to take the position that the interpretation of the optional catalogue of exceptions as laid down in Article 5(3) of the Copyright Directive is not entirely at the relevant member state’s discretion. While many legal scholars shared the opinion that the copyright exceptions in Article 5(3) are broadly formulated to allow every member state to further define the contours of the exceptions it wishes to transpose, the CJEU seems to abandon this point of view by stating that the exceptions may not be determined in an unharmonised manner. It is likely that such interpretation will give rise to more preliminary rulings on the topic.
b. How will the definition of the exception for parody impact the Belgian practice?
A second point of contention concerns the scope of the exception for parody. In Belgium there has already been a lot of legal uncertainty and debate on this point. For the applicability of this exception, some decisions have even required the fulfilment of not less than seven conditions for the exception to be applicable (1. originality of the parody, 2. expression of humour, 3. a form of critic on the original work itself, 4. the reproduced elements should remain limited to what is necessary, 5. no confusion, 6. the (main) purpose may not be commercial, and 7. the (main) intention may not be to harm the original work).
With its definition, the CJEU does not only distance itself from the opinion of many legal scholars and Belgian case law, but also from the conclusion of the advocate-general, who was of the opinion that the parody had to display an original character of its own. Also noteworthy is that rights holders will no longer be able to oppose a parody by stating that the parody does not criticise the original work itself (“parody on“), but is merely used to criticise another issue (“parody with“).
In this regard, it should also be emphasised that the Belgian legislator did not merely copy the text of the Copyright Directive when implementing it. Article 22 § 1, 6° of the Belgian Copyright Act expressly states that the parody should also observe “fair practices“. Since the CJEU rejects additional conditions to the exception for parody, a Belgian court will no longer be allowed to expressly take into account said condition. The question however remains whether or not the Belgian legislator will amend the Belgian Copyright Act so that it is in line with the CJEU’s judgment. This is unlikely to be top of the legislator’s agenda.
c. How should the fair balance be struck in reality?
A fair balance needs to be struck between the legitimate interests of the rights holders and those of the users of the copyrighted work. Although the CJEU does not explicitly refer to the Berne three-step test in its judgment, it seems that an application of said test might have led to the same result. In accordance with this test, a copyright exception should, amongst others, only be applied if it does not unreasonably prejudice the legitimate interests of the author (Article 5(5) of the Copyright Directive).
While it might seem less problematic for a national court to strike a fair balance when discriminatory messages are involved, this might be more difficult when other societal values are in question, and consequently additional requests for preliminary rulings on the interpretation of the concept of ‘legitimate interest’ may occur as a result..
Also in light of this case, the Belgian Court of Appeal will have to be careful to sufficiently take into account the political freedom of expression of Deckmyn. It is not unlikely that a next episode of this comic book series will be written by Deckmyn and end up in front of the European Court of Human Rights in Strasbourg. If this happens, it is likely that a more thorough analysis of Article 10 of the European Convention on Human Rights (freedom of expression) would be needed.
d. Did the CJEU intend to harmonize moral rights?
The CJEU found that rights holders have a legitimate interest in ensuring that their work is not associated with a discriminatory message. One might wonder whether the CJEU has silently attempted to harmonize moral rights by including the foregoing consideration.
Although moral rights are excluded from the scope of the Copyright Directive, the ‘legitimate interests’ of the copyright holders in this case could be interpreted as their (moral) right of attribution and of integrity. It should however be stressed that moral rights are personal, and can only be invoked by authors of a work, and not by other rights holders.
It will in any event remain interesting to see how national courts will deal with cases concerning the exception of parody, and whether they will consider the moral rights of authors in their assessments.
e. How has the exception of parody been dealt with in trademark law?
The exception of parody has not only been the subject of discussion and debate in copyright law, it has also been prevalent in trademark law.. Contrary to the Copyright Directive, there is no explicit exception for parody in the Trademark Directive (directive 2008/95/EC).
Although no clear legal provision is available, there is an evolution in Belgian and Dutch case law permitting the use of a trademark for parody purposes. For Benelux, the justification for such use of a trademark is often found in Article 2.20.1 (d) of the Benelux Convention on Intellectual Property, which states that a trademark holder can prevent any third party, without its consent, “from using a sign for purposes other than those of distinguishing the goods or services, where use of the sign without due cause would take unfair advantage of or be detrimental to the distinctive character or the repute of the trademark“.
It follows from Article 2.20.1 (d) that the use of a trademark for parody is allowed when there is a ‘due cause’. When assessing whether this condition is met, a court will balance the trademark rights of the trademark holder and the interests of the third party using the trademark (often the third party’s freedom of expression). Although no absolute criteria exist for assessing a parody, the following circumstances have already been taken into account by courts: the existence of confusion for the public, an exclusive polemic/humoristic use of the trademark, a use of the trademark in or outside the course of trade and any damages that might be caused to the trademark holder.
Due to the economic value of well-known trademarks, we observe that trademark holders of such valuable trademarks, just like copyright holders of well-known works are often very worried by the use of their trademarks by third parties for parody purposes. This results in rapid enforcement in order to protect the reputation of their trademarks. While trademark holders deserve a sufficiently high level of protection, every single use of a trademark for parody purposes should not be prevented (for example in cases when a third party might want to criticize a policy, such as an environmental policy of the trademark holder). However, while in certain cases a “parody on a trademark” should be permitted, for example for reasons of freedom of expression, trademark holders might deserve a more thorough protection against a “parody with a trademark”. Indeed, trademark rights constitute industrial property that bears per definition an economic value, as opposed to copyrights which, at least in origin, constitute artistic property.
Although trademark law and copyright law serve different purposes, the question may be raised whether a different approach for parody is justified. Would it be problematic and/or lead to dissatisfying results to include a similar exception for parody in trademark law and/or to allow a court to apply in a trademark case the same conditions for parody as developed by the CJEU in the Deckmyn v. Vandersteen case. It cannot be denied that these clear conditions will in any event improve the legal certainty in cases concerning parody.
To conclude, the CJEU has provided useful guidance with regard to the interpretation of the concept of parody, but does not solve all related issues. While the CJEU clarified the concept of parody, it will remain difficult for national courts to apply the fair balance test between the “legitimate” interests of the rights holders and the freedom of expression of the user of the copyrighted work. Hence, it can be expected that the debate will shift from the question “are the conditions for a parody fulfilled?” to the question whether this fair balance test is applied correctly.
For more information on this case and the exception for parody or on copyright in general, please firstname.lastname@example.org or email@example.com.
Court decision details: Judgment in Case C-201/13, 3 September 2014, Johan Deckmyn and Vrijheidsfonds VZW v. Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH and WPG Uitgevers België, www.curia.eu.