Based on a case decided on September 3rd 2014 by the Court of Justice of the European Union (case 201/13, Vandersteen c/ Deckmyn – Vrijheidsfonds), judges were invited to further determine what is commonly qualified as “parody” in the sense of article 5 of Directive 2001/29/CE of the European Parliament and of the Council on harmonization of certain aspects of copyright and related rights in the information society.
According to the Directive, European Union Member States can provide, in their respective national legislations, exceptions or limitations to reproduction rights and communication to the public when using a protected work for the purpose of “caricature, parody or pastiche”.
Belgian law (just as French law in art. L. 122-5 4° of the French Intellectual Property Code) provides for such an exception, subjecting it explicitly to the lawful character of the publication and referring to “fair uses” (article 22 paragraph 1 of the June 30th 1994 Belgian law on copyright and related rights).
In the case at hand, the criticized publication was a calendar distributed during a reception organized by the Town of Gent in Belgium on the occasion of the New Year, at the initiative and under the responsibility of Mr Deckmyn from the Flemish Vlaams Belang political party and of the Vrijheidsfonds, an association financially supporting the Vlaams Belang.
The cover page of the calendar featured a drawing resembling that of the cover – it could not have been otherwise in comic book country – to the Suske en Wiske comic book entitled “De Wilde Weldoener” (the wild benefactor), published in 1961. In the considered drawing, the main character represented on the album cover was replaced by the mayor of the town of Gent, and the characters picking up coins thrown by the main character on the original album cover had been replaced by people wearing veils and colored people.
The rightholders to the comic book series as well as several heirs of the original cartoonist Willy Vandersteen, deceased in 1990, successfully opposed the publication of the misused drawing before a first instance Court.
Mr Deckmyn and the Vrijheidsfonds appealed the decision, arguing an exception for parody. The rights holders, in turn, deemed that the conditions of parody were not met according to regulation, especially, according to them, given the lack of originality of the drawing and the use of elements from the original beyond what was necessary to achieve the parody, and finally because of the discrimination conveyed by the so-called humorous drawing.
The Court of Appeals called upon the Court of Justice of the European Union.
Applying consistent case law (Padawan decision, C-467/08), the E.U. judges first reminded that since article 5 of the Directive 2001/29 did not explicitly refer to member States’ legislation in order to define the notion of parody, such a notion should receive an “autonomous and uniform” interpretation.
The Directive not containing any definition of the notion of “parody”, the Court believes it must refer to the common use of the term in everyday language, to the context in which it is used and to the ends pursued by regulation that provides for an exception for parody and to the exception itself (“the effectiveness”).
The Court concluded that the notion of parody does not require an “original character of its own”. It is not subject to the condition according to which it could reasonably be attributed to a person other than the author of the original parodied work, nor is it subject to the condition that it should relate to the original work itself or mention the source of the parodied work.
Nonetheless, returning to the objectives pursued by Directive 2001/29, the Court emphasizes that it aims at contributing to the application of the four Common Market liberties (free movement of persons, goods, services and capital) as well as the respect of the fundamental principles of law, amongst which one finds property, including intellectual, the right to freedom of expression and public interest. The Directive (recital 31) explicitly seeks to preserve a “fair balance” between the rights and interests of authors on the one hand and those of the users of protected subject-matter on the other.
Therefore, when facing an actual situation, the application of the exception for parody in the sense of article 5 of the Directive, must “strike a fair balance between, on the one hand, the interests and rights of persons referred to in the Directive, and, on the other, the right to freedom of expression of the user of a protected work who is relying on the exception for parody”.
The Court leaves it up to the national court to determine if, in this case, the incriminated cartoon conveys a discriminatory message.
However, the Court takes a stand and reminds that if it were the case, equality and the principle of non discrimination being fundamental principles enshrined by E.U. rules and explicitly listed in the Charter of Fundamental Rights of the European Union, the rights holders of the original work would have a legitimate interest to see to that the protected work not be associated to such a message.
If the Court gives certain leeway to legislators and jurisdictions of Member States in the appreciation, according to the circumstances of the case, of what a lawful parody is, it also sends a clear message on the limits of the right to freedom of expression. Racist and discriminatory messages visibly do not make E.U. judges laugh…