Can you use someone else’s pictures for a joke? Or in order to mock something? Yes, according to the European Court of Justice, which decided this today in the Deckmyn/Suske en Wiske judgement. But there are limits.

In 2011 Deckmyn, member of far-right Flemish nationalist party Vlaams Belang, distributed calendars with a cover resembling the cover of a Suske en Wiske comic strip album from 1961, entitled ‘De Wilde Weldoener’ (The Compulsive Benefactor). (Suske en Wiske comics were published in the UK with the characters dubbed ‘Spike and Suzy’). That cover contains a depiction of a main character from the comic dressed in a white robe scattering coins for people scampering to grab them. Deckmyn took the position that this was parody: in ‘his’ version the character was replaced with the mayor of Ghent and the people scampering to grab the coins were replaced with people wearing veils and people of colour. The heirs to Vandersteen, the famous author of Suske en Wiske, asserted that this represented an infringement of the copyright to the original drawings.
The European Court ruled 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’.

This means, therefore, that works may only be copied for the purposes of parody if they are different in some way from the original and the imitation is aimed at being humorous or mocking.
The parody need not satisfy strict conditions, therefore, according to the Court:

‘The concept of “parody”, within the meaning of that provision, is not subject to the conditions 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; that 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 parodied work.’

The original work does not therefore have to be the subject of the humour or mockery that the parody is attempting to achieve. ‘Confusion’ with the original or source also does not necessarily mean that a parody is impermissible. The freedom of expression plays an important role here.
According to the Court, the limit in any event lies where someone’s parody is ‘discriminatory on grounds of race, skin colour and ethnic background’ (after all, Deckmyn is a member of the Vlaams Belang). According to the Court, the copyright holders to the drawings, such as Vandersteen et al, in principle have a justified interest in the protected work not being associated with a discriminatory message.

The national court in Brussels will now have to rule on the case. For the rest, the right to parody is explicitly mentioned in the Copyright Directive, but the provision is optional in Europe.

This is the first time that the European Court has given a decision on parody, making it an extremely important judgement. The judge must decide whether something is (intended to be) funny or mocking. In this case the European Court determined the limit for the use of drawings in parody, but this decision in principle also applies for other works. One can go (very) far in using parody, but authors have the right to prohibit a parody if it is discriminatory.

By Joost Becker