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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Filed Under: copyright, deckmyn, eu, eu court of justice, moral rights, parody


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  • icon
    That One Guy (profile), 8 Sep 2014 @ 11:20pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2014 @ 1:16am

      Re:

      I wonder who got paid to add that in? Because, to paraphrase Futurama:

      PITIFUL MEATBAG! PARODIES DO NOT WORK THAT WAY! RAAAAAAGH!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2014 @ 4:40am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 9 Sep 2014 @ 12:08pm

        Re: Re:

        In the vast sea of awful legislation in the US, it's nice to be able to recognize something that is (relatively) positive: I'm very glad that the US has neither laws prohibiting "hate speech" nor a "moral rights" component to copyright. They both seem like incredibly dangerous ideas to me.

        reply to this | link to this | view in chronology ]

    • identicon
      Rummeltje, 10 Sep 2014 @ 9:39am

      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

      reply to this | link to this | view in chronology ]

      • identicon
        Bob, 20 Sep 2014 @ 9:15pm

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Quinn Wilde, 9 Sep 2014 @ 1:37am

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 9 Sep 2014 @ 3:06am

      Re: Censorship and copyright, again

      There's the fact that offensive largely depends on who is reading/consuming said parody. Considering how thin skinned people are nowadays this ruling is incredibly problematic.

      reply to this | link to this | view in chronology ]

      • icon
        Whatever (profile), 9 Sep 2014 @ 6:34am

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Michael, 9 Sep 2014 @ 7:17am

          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.

          reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 9 Sep 2014 @ 9:06am

          Re: Re: Re: Censorship and copyright, again

          And Whatever rides in to the defense of copyright law and copyright holders, as expected.

          reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 9 Sep 2014 @ 12:11pm

          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.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Sep 2014 @ 4:46am

      Re: Censorship and copyright, again

      Swedish artist Dan Park was sentenced to 6 months in prison for his racistic art (the latest in a long line of convictions of racism). He claimed satire and freedom of speech.

      ie. http://www.theguardian.com/world/2014/aug/22/swedish-artist-sentenced-racist-art-dan-park

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 9 Sep 2014 @ 9:06am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2014 @ 1:38am

    The parody defense should be sustainable on the grounds that the work is an obvious parody, and is therefore NOT the work of the original author, and unless claimed otherwise, does not represent their views.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Cowherd, 9 Sep 2014 @ 3:12am

    If all the characters were replaced, what exactly are these people claiming copyright over? The concept of someone throwing money and others picking it up?

    reply to this | link to this | view in chronology ]

    • identicon
      Quinn Wilde, 9 Sep 2014 @ 3:33am

      If all the characters were replaced, what exactly are these people claiming copyright over? The concept of someone throwing money and others picking it up?


      If there's one thing copyright maximalists always do find offensive, it's the concept of anyone else picking up money.

      reply to this | link to this | view in chronology ]

      • identicon
        Wild Quinn, 10 Sep 2014 @ 7:36pm

        Re:

        Don't forget this parody is also discriminatory. It's just downright offensive how white people have been excluded as well.

        reply to this | link to this | view in chronology ]

  • icon
    Zakida Paul (profile), 9 Sep 2014 @ 4:29am

    Making the exception virtually worthless. Awesome.

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 9 Sep 2014 @ 5:44am

      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...

      reply to this | link to this | view in chronology ]

  • identicon
    Michael, 9 Sep 2014 @ 4:52am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2014 @ 9:16am

    Re: 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.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 9 Sep 2014 @ 2:01pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Herbert Hoovercraft, 9 Sep 2014 @ 2:56pm

    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'.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2014 @ 3:47pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2014 @ 4:13pm

    What about parodying works that are themselves discriminatory? Is making fun of, say, Nazi propaganda now Verboten?

    reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 10 Sep 2014 @ 5:36pm

    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...

    reply to this | link to this | view in chronology ]

  • identicon
    Laura | Dutch Law Firm AMS, 18 Sep 2014 @ 5:54am

    Sometimes it is hard to decide whether something is called a parody or when it is really offensive..

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 18 Sep 2014 @ 6:11am

      Re:

      Sometimes it is hard to decide whether something is called a parody or when it is really offensive..

      You seem to imply those are mutually exclusive categories. Why do you think that?

      reply to this | link to this | view in chronology ]


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