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CJEU Deckmyn v Vandersteen: (some) guidance on the autonomous concept of parody

Friday, 3 October 2014

On 3 September 2014, the Court of Justice EU (CJEU) delivered its judgement in the Deckmyn v Vandersteen case C-201/13, in which the CJEU sought to provide guidance as to the autonomous concept of parody and the requirements a lawful parody should meet. 

Background

The heirs and right holders of Willy Vandersteen - creator of the Spike and Suzy (Suske & Wiske in Dutch) comics - claim their copyright in the picture on one of the Spyke and Suzy comic book covers is infringed by a drawing of the Flemish political party Vlaams Belang. The litigious picture resembles the Spike and Suzy cover and is used to express the political party’s ideas. The defendants claim their drawing does not infringe the copyright in the original cover as it constitutes a lawful parody. 

Click here for the pictures in issue. The picture on the left depicts the drawing on the Spike and Suzy cover, the one on the right depicts the litigious drawing.      

Decision

The following questions were referred to the CJEU by the Brussels Court of Appeal:

  1. Is the concept of 'parody' an independent / autonomous concept in European Union law?
  2. If so, are there any conditions or characteristics a lawful parody should satisfy or conform to?
  3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

The conditions or characteristics as referred to in the second question of interpretation are: 

  • The display of an original character of its own (originality);
  • The display of an original character in such a manner that the parody cannot reasonably be ascribed to the author of the original work;
  • The design of the parody to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
  • The mentioning of the source of the parodied work.

In the same vein as A-G Cruz Villalón in his opinion, the CJEU holds that the term ‘parody’ should be regarded as an autonomous concept which should be interpreted uniformly throughout the European Union. The parody exception according to which a lawful parody does not constitute a copyright infringement is included in article 5(3)(k) of the Infosoc Directive 2001/29. As the Infosoc Directive makes no reference to the national laws of the EU Member States, the concept of parody should be considered an autonomous concept of EU law, according to the CJEU.  

So what constitutes a ‘parody’ according to the autonomous EU interpretation of the concept? In answering questions 2 and 3, which the CJEU examines together, the Court first determines that the term ‘parody’ should be defined considering its usual meaning in everyday language.

Furthermore, the CJEU sets out a parody has two essential characteristics:

  1. to evoke an existing work while being noticeably different from it, and,
  2. to constitute an expression of humour or mockery.

The Court does not give any further guidance as to when these characteristics would be fulfilled.

Then, contrary to the opinion of the A-G, the CJEU holds that parodies do not have to meet the conditions included in the second question referred by the Brussels Court of Appeal. That is, it is not required that a parody:

  1. should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work;
  2. could reasonably be attributed to a person other than the author of the original work itself;
  3. should relate to the original work itself or mention the source of the parodied work.

Whereas the A-G in its opinion had held a lawful parody should be an original work not to be confused with the parodied work, the CJEU rules that it follows neither from the usual meaning of ‘parody’ in everyday language, nor from the wording of the Infosoc Directive that a parody should be subject to the conditions of the second question of interpretation.

Moving on to the delicate issue of fundamental rights - the Court determining that parodies are fit to express one’s opinions - according to the CJEU a fair balance must be struck between the interests and rights of the authors of copyright protected works on the one hand, and the right to freedom of expression of the users of such works relying on the parody exception, on the other hand. In this light, referring to the Vlaams Belang drawing which according to Vandersteen ventilates a discriminatory opinion, the CJEU determines it is for the national court to strike the aforementioned balance, taking into account the principle of non-discrimination. For this purpose, the Court adds authors in those circumstances have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with discriminatory messages. No guidance is offered as to the application in practice of the legitimate interest.

Implications

Although the decision of the CJEU clarifies that the concept of parody is an autonomous concept which should be interpreted uniformly throughout the EU, the judgement leaves a certain number of loose ends. Hence, the implications of this case in practice are likely to only become clear after subsequent judgements of national courts applying the CJEU’s ruling.

Published in magazine 3 October 2014

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