Is use of copyright protected works for the purpose of humour or mockery legally allowed? Yes, says the Court of Justice of the European Union in the Deckmyn v Vandersteen judgment recently. But there are limits.
Deckmyn, as a member of the right wing party ‘Vlaams Belang’, issued a calendar using drawings that resemble those appearing on the cover of the Suske en Wiske (in English: Spike and Suzy) comic book with the original title De Wilde Weldoener (The Compulsive Benefactor), produced in 1961 by Willy Vandersteen. Deckmyn claims this to be a parody to criticise the mayor of the city of Ghent: in the drawings the face of the original benefactor is replaced by the Mayors’, and the background shows ethnic minorities. The heirs Vandersteen, well-known Suske en Wiske author, claim copyright infringement on the original drawings.
The CJEU rules that ‘with regard to the usual meaning of the term ‘parody’ in everyday language, it is not disputed (…) that the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’
And:
‘It is not apparent either from the usual meaning of the term ‘parody’ in everyday language, or indeed, as rightly noted by the Belgian Government and the European Commission, from the wording of Article 5(3)(k) of Directive 2001/29, that the concept is subject to the conditions set out by the referring court in its second question, namely: that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; could reasonably be attributed to a person other than the author of the original work itself; should relate to the original work itself or mention the source of the parodied work’
This means that parody does not have to meet strict conditions. Also, freedom of expression plays an important role here. According to the CJEU: ‘It is not disputed that parody is an appropriate way to express an opinion.’
However, according to the CJEU if the drawing conveys a discriminatory message which has the effect of associating the protected work with such a message, the use thereof can be successfully prohibited on the basis of non-discrimination rules as laid down in the Directive on equal treatment between persons irrespective of racial or ethnic origin and the Charter of Fundamental Rights of the European Union. In that case the author has a ‘legitimate interest’ to ensure that the work protected by copyright is not associated with such a message.
The national court in Brussels must now continue to rule on this case, taking into account all the circumstances of the case. This is the first and very important judgment of the CJEU on parody exception. From now on, it’s legally decisive whether or not a parody constitutes an expression of humour or mockery. As such, one may go (very) far with the use of a parody, but authors have the right to prohibit the use thereof if the message is in fact discriminatory.