European Court of Justice Defines Parody
by Marie-Andrée Weiss
On September 3, the European Court of Justice (ECJ) published its judgment in the Deckmyn v. Vandersteen case, C-201/13 where it defined what a parody is under European Union (EU) law. The ECJ also stated that copyright holders have a “legitimate interest” to ensure that their work is not associated with a discriminatory parody, but stopped short at giving copyright holders an absolute right to strike down discriminatory parodies.
The ECJ had been asked by the Brussels Court of Appeals for a preliminary ruling in the interpretation of article 5.3(k) of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the “Information Society Directive“), which gives Member States the option to provide an exception to copyright infringement if the infringing work has been used “for the purpose of caricature, parody or pastiche.”
In that case, the heirs of Willebrod Vandersteen, the author of the Suske en Wiske comic books, and the holders of the intellectual property rights associated with these works, had sued Johan Deckmyn and the Vrijheisfonds VZW, a non-profit association which sole purpose is to support financially the Belgium nationalist political party Vlaams Belang, to which Deckmyn belongs. Deckmyn had distributed in January 2011 a calendar inspired by a cover of the Suske en Wiske’s album ‘De Wilde Weldoener’ (The Compulsive Benefactor) at a New Year reception in Ghent. While the cover of the original album showed a middle-aged man wearing a bowler hat, business shoes and a toga, throwing coins at people while flying in the air, the calendar showed a caricature of the mayor of Ghent, wearing a toga and the black, yellow and red belt which is the attribute of mayors in Belgium, flying in the air while distributing money to “people wearing veils and people of colour” (at 9).
The heirs sued for copyright infringement and won in the court of first instance. Defendants appealed and raised a parody defense under point (6) of Article 22(1) of the June 30, 1994 Belgium copyright law, asserting that a parody must be itself original, and that it must be humorous and seeking to ridicule the original work. The heirs disputed that definition of a parody. In order to decide the case, the Brussels Court of Appeals asked several preliminary questions to the ECJ. It asked whether a parody is an autonomous concept of European Union law, and also asked if a parody must be original, if a parody must be such that it cannot be reasonably attributed to the author of the original work, if a parody must seek to be humorous, whether it must mock the original work or not, and finally if a parody must mention the source of the parodied work.
The concept of parody is an autonomous concept of EU law
Pedro Cruz Villalón, Advocate General (AG) of the ECJ, published his opinion on the case on may 22, 2014. An AG publishes an opinion to guide the ECJ, but the court is not obliged to follow it. In AG Villalón’s opinion, parody is an autonomous concept of the EU law. The ECJ followed its AG’s opinion and held that the concept of parody is indeed an autonomous concept of EU law. As such, it must be interpreted uniformly throughout the European Union.
What is a Parody?
However, the Information Society Directive does not define what is a parody. Therefore, the meaning and scope of this legal concept “must be determined by considering its usual meaning in every day language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part” (paragraph 19).
In his Opinion, AG Villalón undertook to define what is a parody. It quoted the definition of parody given by dictionaries in several languages, among them the definition provided by the Shorter Oxford English Dictionary, «A prose, verse or (occas[ionally]) other artistic composition in which the characteristic themes and the style of a particular work, author, etc. are exaggerated or applied to an inappropriate subject, esp[ecially] for the purposes of ridicule (…)» AG Villalón explained that parody is “in its most summary statement structurally an “imitation” and functionally “burlesque“” (AG Opinion, at 48).
The ECJ provided a somewhat different definition of a parody, as it stated that a parody’s essential characteristics are (1) “to evoke an existing work, while being noticeably different from it” and (2) “to constitute an expression of humour and mockery.” The parody, however, does not have to display an original character of its own, but it must display “noticeable differences” with the original work, and “it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodies work” (at 33).
Parody and Freedom of Expression
The right to parody is, however, not absolute. The ECJ noted that, in this case, the parody conveyed a discriminatory message, and that the EU has adopted the principle of non-discrimination based on race, color, or ethnic origin, as defined by the Council Directive 2000/43/EC of June 29, 2000. As such, copyrights holders have “a legitimate interest in ensuring that the work protected by copyright is not associated with such a [discriminatory] message” (at 31). AG Villalón had asked in his opinion “[t]o what extent the interpretation by the civil courts of the scope of the parody exception may be conditioned by fundamental rights?” (Opinion at 76). He concluded that if the message conveyed by the parody is “radically contrary to the deepest convictions of society,” then the parody exception to copyright infringement should not apply. For AG Villalón, the Member States would have to determine, on a case to case basis, if a particular parody reaches this extreme level.
But the ECJ did not go as far, merely stating that the courts must balance the rights of the copyright owners with the right of freedom of expression of the parodist, and to do so, must take all the circumstances of the case into account to preserve such fair balance, without adding that the threshold would be whether a particular parody is “radically contrary to the deepest convictions of society.”