The Court of Justice of the European Union has recently ruled that the concept of parody must be regarded as an autonomous concept of EU law, in the case known as Dechmyn v. Vandersteen (case Case C 201/13).
Johan Dechmyn was a member of a far right political party in Belgium, and at a 2011 event he distributed calendars which included an image adapted from the cover of a comic book from Vandersteen's comic series, which is known in English by the title Spike and Suzie.
In the adaption of the comic book cover, the mayor of Ghent was depicted as one of the comic book characters, throwing gold coins to immigrants. The heirs of the owner of the original work sued in Belgium for infringement of copyright.
The Brussels Court of Appeal referred certain matters to the Court of Justice of the European Union in respect of parody law.
The original and modified images at issue in the case were as follows:
The defendant Dechmyn argued that the modified image was a political cartoon which fell within the scope of parody, and therefore permission from the copyright owner was not required.
The CJEU stated that parody must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union.
The Court found that there were two basic criteria for parody: Firstly that the work of parody evokes an existing work while being noticeably different from it, and, secondly, the work must constitute an expression of humour or mockery.
The reference to humour or mockery is wider than some jurisdictions interpret parody, such as the United States, where some courts require that the parody specifically comment on the original work or its creator.
The European Court found that parody does not require (i) that the parody must display an original character of its own, other than displaying noticeable differences with respect to the original work; (ii) that it could be reasonably attributed to a person other than the author of the original work, nor (iii) that it must relate to the original work or mention the source of the original work.
The Court found that the exception for parody must strike a fair balance between the interests of the owner, and freedom of expression of the user.
However, the Court also noted that the use in this case may convey a discriminatory message, and the Court ruled that it was to be determined by the National Court whether the parody was discriminatory, which might negate the parody protection. The Court stated that the owners of the work have a legitimate interest in ensuring that it is not associated with such a discriminatory message.
This decision will be of interest to creators distributing works of parody in the European market.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
