May a parody constitute a copyright infringement? European Court of Justice to give the answer

By katerinakatsampani@hotmail.com

The European Court of Justice has recently published the decision C- 201/2013  Johan Deckmyn ,Vrijheids fonds VZW v  Vandersteen , ‘ Vandersteen and others’. In this case, the judges of Luxembourg were asked to interpret article 5 par. 3 …point (k) of the directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society. Αccording to the text of the article “member states may provide for exceptions or limitations to the rights provided for in articles 2 and 3 [entitled ‘reproduction right’ and ‘ right of communication to the public of works and right of making available to the public other subject matter] in the case ..(k) of the use for the purpose  of… parody” .We have to mention that parody is a favourite topic for legals who emphasise on the importance of the ‘fair use‘ of works protected by the directive 2001/29. It is as if we put in tug of war the copyright and the freedom of expression, as the latter is reflected in article 11 of the Charter of fundamental rights of the European Union.

The circumstances of the case are briefly the following. Mr Deckmyn is a member of the Vlaams Belang political party. At the reception held by the city of Ghent in Belgium on the 9^th of January 2011 to welcome the new year, Deckmyn handed out calendars for 2011 in which he is named as the editor. On the cover-page of those calendars appeared a drawing which resembled the appearing on the cover of Suske en Wiske comic book (the title of the comic is De Wilde Weldoener which would be roughly translated the Compulsive Benefactor). This comic was created in 1961 by Mr Vandersteen. The drawing at the cover of the comic represented one of the main characters wearing a white tunic and throwing coins to people who were trying to pick them up. The differences in the case of the drawing of the calendar were the replacement of this character by the Mayor of Ghent and the clothing of the people who were of colour wearing veils.

The heirs of Mr Vandersteen as well as ‘ Vandersteen and others’ brought an action against Mr Deckmyn and Vrijheidsfonds  before the Court of the First Instance of Brussels. Their main claim was that this modified use of the drawing caused a violation of their copyrights according to the Belgian law of 30 June 1994 on copyright and related rights. On the contrary, the defendants evoked article 22 (1) point 6 of the same law according to which “Once a law has been lawfully published, its author may not prohibit caricature, parody and pastiche observing fair practice.” The Court of the First Instance rejected the arguments of Mr Deckmyn and Vrijheidsfonds VZW ordering the cease of all use of the drawing.

The Court of Appeal of Brussels, however, before which the case was transferred, decided to stay the proceedings and to refer the following questions to the Court of the European Union for a preliminary ruling:  1. Is the concept of “parody” an autonomous concept of European Union Law? 2. 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 moke, 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? 3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as parody?

As far as the first question is concerned, the judges have stressed that it follows from the need for uniform  application of EU law and the principle of equality that the terms of a provision of European Union Law,  which make no express reference to the law of the member states, must normally be given an autonomous and uniform interpretation throughout the European Union. Consequently, in the present case, the term ‘parody’ which appears in the directive 29/2001 and does not contain any reference to national laws , must be regarded as an autonomous concept of European Union Law and interpreted uniformly throughout the European Union.

Regarding the second and third questions, the judges noted that Directive 2001/29  does not give a definition of the notion of parody. As a consequence , this concept must be determined by considering its usual meaning in everyday language. With regard to the usual meaning, the two essential characteristics of parody are, first, to evoke an existing work and secondly to constitute an expression of humour or mockery. It does not follow from the article 5 (3) note k of the Directive 2001/29 that a parody should display an original character of its own or that it should mention the source of the work parodied.

In addition , as stated in recital 31 in the preamble to directive 2001/29 , the exceptions to the rights set out in articles 2 and 3 of that directive which are provided for under article 5 thereof, seek to achieve a ‘fair balance’ between in particular the rights and interests of authors on the one hand, and the rights of users of protected subject – matter on the other. As far as the dispute in front of the national court is concerned,  it should be noted that according to Vandersteen and others, since, in the drawing at issue, the characters who, in the original work were picking up the coins were replaced by people wearing veils and people of colour, that drawing conveys a discriminatory message which has the effect of associating the protected work with such a message. According to the judges of Luxembourg the national court should draw its attention to the principle of non- discrimination based on race, colour and ethnic origin. In those circumstances, holders of rights provided for in articles 2 and 3 of Directive 2001/29 , such as Vandersteen and others have, in principle a legitimate interest in ensuring that the work protected by copyright is not associated with such a message.

In conclusion, the application in a particular case of the exception for parody within the meaning of Article 5(3) k of Directive 2001/29 must strike a fair balance between, on the one hand the interests and rights of persons referred to in articles 2 and 3 of that directive and, on the other, the freedom of expression of the user of a protected work who is relying on the exception of parody within the meaning of Article 5 (3) K. It is for the national court to determine in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of article 5 (3) K of directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance. This is the only safe way to recognise the value of parody both as a form of social criticism and catalyst in literature. Otherwise, in the name of freedom of expression, serious violations of copyrights take place.