Reed Smith Client Alerts

Authors: James D. Tobias Nick Swimer

Type: Client Alerts

Following on from the Advocate General’s opinion in the case of Johan Deckmyn [C-201/13] (see our earlier client alert here), the Court of Justice of the European Union (CJEU) handed down its full judgment in the case on 3rd September 2014. The ruling confirms that the concept of parody must be regarded as an autonomous concept of EU law and that a parody has two essential characteristics: (i) it must evoke existing work whilst being noticeably different from it; and (ii) it must constitute an expression of humour or mockery. However, the ruling surprised some by indicating that a parodist may not be able to take advantage of the exception where the parody conveys a discriminatory message.

Recap of the case The full background and details of the case can be seen in our earlier client alert but by way of brief recap the case arose after Johan Deckmyn distributed calendars to the public at an event hosted by his far-right political party, Vlaams Belang. The calendars included an image adapted from the cover of a comic book from Mr Vandersteen's “Suske en Wiske” (“Spike and Suzy”) series, in which the mayor of Ghent was depicted as one of the comic book characters, strewing gold coins to immigrants. The heirs and rightholders of the original work obtained an interim injunction in the national court, preventing further distribution. The decision was appealed before the Brussels Court of Appeal where the defendant argued that the image should fall within the Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act 1994 and Article 5(3)(k) of the InfoSoc Directive (2001/29/EC). The Court of Appeal then referred the following questions to the CJEU:

  1. Is the concept of "parody" an independent concept in European Union law?
  2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
    • The display of an original character of its own (originality);
    • And such that the parody cannot reasonably be ascribed to the author of the original work;
    • Be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to someone else; and
    • 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 a parody?

Parody as an autonomous concept The judgment handed down by the CJEU follows the Advocate General’s opinion in confirming that in order to meet the harmonisation objective, the concept of parody must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the EU.

Defining parody Just as with the Advocate General’s opinion, the judgment also addresses the second and third questions together and, in doing so, provides some helpful clarity in relation to the characteristics of a parody. The judgment states that the term “parody” should be determined by considering its usual meaning in everyday language:

  1. The parody must evoke an existing work, while being noticeably different from it; and
  2. It must constitute an expression of humour or mockery.

Accordingly, the court’s view was that the concept of parody is not subject to the other conditions set out by the referring court, namely that the parody: should display an original character of its own, other than that of displaying noticeable differences from the original parody’s work; could reasonably be attributed to a person other than the author of the original work; and should relate to or mention the source of the original work itself.

Discrimination in parody Somewhat controversially, one further aspect of the CJEU’s ruling may limit the ability to rely on the parody exception. The InfoSoc Directive seeks to ensure that copyright exceptions strike a fair balance between the interests of rights holders and the freedom of expression. A court therefore needs to also consider this in deciding whether a work falls within the parody exception. The CJEU considered that where a parody contains a discriminatory message, the rights holders in the original work “have, in principle, a legitimate interest in ensuring that the work is not associated with such a [discriminatory] message”.

Impact It will now be up to national courts to strike a suitable balance on the facts of each case brought before them. In the UK, the incoming parody exception (which comes into force in October this year) will be subject to fair dealing principles. However, this decision may serve to provide rights holders with arguments to prevent parodies of their works without permission. Indeed, given the court’s emphasis on balancing the interests of rights holders with the right of parodists to freedom of expression, discrimination may be just the first of many other potential arguments that rights holders may invoke in order to persuade national courts that the balance should be tipped in their favour.

Client Alert - 2014-233