Europe's Highest Court Introduces New Limitation To EU Parody Exception

from the legitimate-interest? dept

Under the European Copyright Directive, Member States may bring in an exception to copyright that allows works to be used without consent for the purposes of caricature, parody or pastiche. Following a long-drawn-out process, the UK will be doing exactly that, with effect from October 1. But a new judgment from Europe’s highest court, the Court of Justice of the European Union, has added a new limitation to the parody exception (pdf). Here’s the background to the case, as explained by the court’s press release:

At a reception held by the [Belgian] city of Ghent to celebrate the New Year, Mr Deckmyn, a member of the Vlaams Belang (a Flemish political party), handed out calendars for the year 2011. The cover page of those calendars featured a drawing which resembled that appearing on the cover of one of the Suske en Wiske — known in English as Spike and Suzy — comic books with the original title ‘De Wilde Weldoener’ (which may be rendered as ‘The compulsive benefactor’), produced in 1961 by Willy Vandersteen. The original drawing represented an allegorical character in the series wearing a white tunic and surrounded by people trying to pick to pick up the coins he was scattering all around. In the drawing appearing on Mr Deckmyn’s calendars, that character was replaced by the mayor of the city of Ghent, while the people picking up the coins were replaced by people wearing veils and people of colour.

Several of Vandersteen’s heirs and other holders of the rights to the comic book series brought an action against Deckmyn and the organization that financed the Vlaams Belang, claiming copyright infringement. These last two said that the calendar was satire, and therefore was covered by the EU’s parody exception. The copyright holders asserted that parody must display originality, and that anyway the drawing conveyed a discriminatory message. Faced by all these claims, the Court of Appeal in Brussels asked the EU Court of Justice to clarify the conditions that a work must fulfill in order to be classified as parody. Here’s the good news from the EU court’s decision:

A parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied.

But there’s less-good news in the form of this additional comment:

The Court notes that the application of the exception for parody, established by the directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rightsholders and, on the other, the freedom of expression of the person who wishes to rely on that exception. In that context, the Court declares that, if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message.

As is usual, the EU Court of Justice has passed the case back to the original Belgian court to apply its judgment. The latter will have to decide whether the parody in this case does indeed convey a discriminatory message, and whether the copyright holders can therefore require that the work is not “associated with such a message” — which presumably means that they can insist that it is not distributed.

What’s problematic here is that, by its very nature, parody is pushing the boundaries of good taste; it’s quite likely to use images that upset some people, and that are maybe borderline discriminatory in some way (whatever that means). The risk is that the rather vague ruling from the European court will encourage more legal action to be taken against works of parody, and for social and political commentary to suffer as a result.

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Comments on “Europe's Highest Court Introduces New Limitation To EU Parody Exception”

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31 Comments
That One Guy (profile) says:

So you can parody a work, as long as the parody doesn’t offend the original creator… Did the judges bother to look up what ‘parody’ actually means, because a limitation like that seems like it would affect a huge number of works.

I can understand why the original creators of a work might not want to be associated with a parody they find offensive or contrary to their views/stances/beliefs, but that’s kinda one of the larger uses of parody, to say something that the original creator wouldn’t, to present a work in a way contrary to it’s original purpose.

Having a ‘no offending the original creators’ clause added in just seems like it’s gutting the main purpose behind the parody exception, by making it far easier to shut down parodies that the creator of the original work doesn’t like.

Anonymous Coward says:

Re: Re:

It is associated with the “hatespeech” laws in EU and the authors moral rights. You could argue that the moral rights doesn’t cover parody, but there will have to be a line somewhere to distinguish them. When something is used without permission for political purposes it is usually a significant aggravating circumstance.

Rummeltje says:

Re: Re:

I haven’t seen a single Suske en Wiske parody that wouldn’t offend…..And I have seen quite a few of them.
Pretty much all the parody comic books have the characters do stuff that the original creator would never let them do.
(Explicit sex, incest, violence, foul language, etc etc)
A ruling like that would give the authors / publishing companies that now own the copyright grounds to go after every single parody comic in existence.

Suske en Wiske sex parodie :
http://nastycomics.wordpress.com/2013/11/17/suske-en-wiske-het-helpende-handje/

and an older sex parodie (Containing sex and racism)
http://members.chello.nl/r.veen3/boek1.html

Bob (user link) says:

Re: Re: Re:

(Explicit sex, incest, violence, foul language, etc etc)
A ruling like that would give the authors / publishing companies that now own the copyright grounds to go after every single parody comic in existence.

Suske en Wiske sex parodie :
http://nastycomics.wordpress.com/2013/11/17/suske-en-wiske-het-helpende-handje/

Just to clarify: I’m the author of above comic (Nasty Comics) and there’s no incest (Suske & Wiske are not relatives) and violence in this parody, nor the 2 other Suske & Wiske parodies I did. They’re adult parodies, so yes, there is sex in them as this was the intention.

In the past the court ruled that the ‘Glunderende Gluurder’ parody was legal and based on that I just hope mines are legal too.

Quinn Wilde says:

Censorship and copyright, again

So we’ve established that parody is a fair use exception to copyright law, and the EU is in pretty much full agreement, but now we’re learning that we can’t say things that are offensive with parody as the medium.

So yet again, copyright law is being used for censorship, with the blessing of the courts. Yet again the right to free speech is being diminished, while lip service is being paid to the notion that it is being expanded.

It’s deeply unecessary.

If somebody says something offensive enough that it breaks laws in your country, then use those laws regardless of whether it was parody or not. If someone says something which cannot legally be censored by whatever well meaning laws are used to abrogate free speech in your country, then for goodness sake don’t use copyright law to do the job.

And if artists cannot accept that their works will be used by, and for the benefit of, people or causes which or whom they do not agree, then they really have just one choice, which is not to release those works.

I know that’s the hardest part to swallow. It turns my stomach to think of, say, racists or homophobes perverting something that I thought was beautiful, to their own twisted ends. But when did we stop believing that the best solution to bad speech, is more speech?

Art should not be the battleground for this, because sooner or later, art belongs to all of us, even those of us who are genuinely awful people with genuinely awful views.

Whatever (profile) says:

Re: Re: Censorship and copyright, again

The thing is, it’s pretty easy to see the offensiveness of it. You don’t have to even work to realize that it’s portraying people of color and islamic people in a very negative, stereotypical way. In itself, the world is fairly offensive.

Now, the copyright holder has to deal with the issue that their work has been re-used to make an offensive point. Do they have no right to not be associated with such a work? What happens if people mentally decide that this work represents the work of the original artist in some way, making that work less desirable, tarnishes the reputation of the artist, and so on?

The court is only saying that like many other things, the “right to parody” isn’t any more absolute than other “rights”, and doesn’t trump everyone else’s rights. The EU courts generally seem to rule in this manner on issues, expressing a sort of logical balance that is generally missing from court rulings. Black and white rulings (no pun intended) don’t always work when you are looking at overlapping rights.

Michael (profile) says:

Re: Re: Re: Censorship and copyright, again

What happens if people mentally decide that this work represents the work of the original artist in some way, making that work less desirable, tarnishes the reputation of the artist, and so on?

You cannot legislate people making stupid inferences like that. You could argue that anything could accidentally be associated with an artist.

I understand a negative reaction by an artist to someone using their art in a parody, but that is often the point. Change the vision of the artistic work in a way that adds commentary to the original – parody is about the conversation, not the art, and that conversation is often in opposition to the artist. Parody is supposed to allow someone to take an artistic piece and turn it into a statement saying that the artist is a dick – what preventing it suppresses is free speech.

John Fenderson (profile) says:

Re: Re: Re: Censorship and copyright, again

“Do they have no right to not be associated with such a work?”

I think it’s a stretch to say such parody “associates” the original artist in any meaningful way to the point the parody was trying to make. And the artist can pretty easily correct any misunderstanding by denouncing the parody work.

nasch (profile) says:

Re: Censorship and copyright, again

If somebody says something offensive enough that it breaks laws in your country, then use those laws regardless of whether it was parody or not. If someone says something which cannot legally be censored by whatever well meaning laws are used to abrogate free speech in your country, then for goodness sake don’t use copyright law to do the job.

Just wanted to highlight this. Well said.

art guerrilla (profile) says:

Re: Re:

exactly, bottom line is: you have no free speech…

(when you start down the road of banning ‘offensive’ speech, YOU HAVE NO FREE SPEECH LEFT…)

have ALWAYS disagreed with the idiotic anti ‘hate speech’ laws in europa; how ANYONE with two brain cells to rub together can’t see the end game of that little bit of fascism is beyond me…

Michael (profile) says:

In that context, the Court declares that, if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message.

I get it. This isn’t a real ruling. The court is making a point by doing a parody of a real court ruling to show that this would be a totally ridiculous idea.

Anonymous Coward says:

Censorship and copyright, again

Well, this has everything to do with Europe’s stance on censorship of hate speech and less to do with copyright.

Under the ECHR, hate speech is one exception to fredom of expression.

If the government can outright forbid hate speech, it’s somehow logical that it may also grant authors the moral right to prevent their copyrighted works being exploited to promote a discriminatory message.

It leaves aside whether hate speech ought be forbidden, and whether copyright law should be construed as granting a moral right to censor political speech.

But in Europe these questions have been settled.

Under the First Amendment the outcome would be different.

Herbert Hoovercraft says:

One can see the original cover and the parody cover here:
http://merkenbureau.abcor.nl/new/newsimages/2011/20110109_parodie_suske_en_wiske_wildeweldoener_-_vlaams_belang2501201131081854.jpg

Or through a google-image search on ‘parodie de wilde weldoener’.

There is some irony in the fact that the artist who made the original comic, Willy Vandersteen, collaborated with the nazi-occupiers in Belgium, and had some of his fascist cartoons published. (One can see them here, the article is in Dutch: http://www.eenvandaag.nl/blog/43593/de_foute_voorlopers_van_suske_en_wiske)

So yeah. The original creator is long dead. Not sure that he would be offended;
The parody is cleary derivative. It is also obvious that the distributor of the money is the mayor of Ghent, and not the fictional character ‘Lambic’.

Anonymous Coward says:

Copyright and trademarks

“The US doesn’t allow copyright for racial type things like the red skins name. I think the holder of the copyright has a legitimate interest here if the
drawing is similar enough.”
No you are confusing copyright with trademarks.

The Redskins controversy is not about forbidding speech associating a copyrighted work with racism but about whether Redskins is a disparaging mark unrecognizable under the Lanham Act.

The Lanham Act does not outlaw speech, even of the disparaging and hateful kind, it only refuses to recognize disparaging labels as trademarks.

Morals rights under copyright law on the other hand impose severe limitations even on non-commercial speech.

BernardoVerda says:

Goose. Gander.

I’d love to see the arguments in court, explaining just how the parody is more offensive and discriminatory towards “foreigners” than the original was to the “regular folk” portrayed acting in precisely the same way.

Of course there’s the little matter that it’s arguably the political “benefactor” who’s actually being targeted…

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