The parody exception – seeing the funny side of it

Case C-201/13 Johan Deckmyn v Helena Vandersteen (Opinion of Advocate General) 22 May 2014.

This is the first case to be referred to the Court of Justice of the European Union on the parody exception under the Copyright Directive (2001/29/EC). Advocate General Cruz Villalón has issued an opinion, at the time of writing available in various languages except English, addressing the interpretation of the exception, the related requirements and its interaction with fundamental rights.

In the Advocate General’s view, parody is an independent concept of EU law to be given a uniform interpretation throughout the EU. For a work to qualify as a parody for the purpose of a copyright exception, the work must have sufficient originality and humour. But the courts of Member States retain significant discretion to determine whether works will meet the parody criteria, taking into account domestic differences. With the current delay in the introduction of the parody exception under English law and the continuing criticism surrounding the Directive, the opinion is a welcome clarification of the likely meaning and scope of the parody exception at EU level.

Background

Article 5(3)(k) of the Directive allows Member States to introduce an exception to the reproduction right under Article 2 and the right of communication to the public under Article 3, for the purpose of caricature, parody or pastiche.

The Deckmyn case arose from a calendar image distributed at a New Year’s event by the Flemish nationalist political party, Vlaams Belang, as well as in a brochure and on its website. The calendar’s front page closely replicated the cover of a Suske en Wiske (Spike and Suzy) comic album, but manipulating it to promote a far-right political message with the heading “De Wilde Weldoener” (“The Wild Benefactor”). The parody depicted Daniël Termont, Ghent’s mayor, wearing a white tunic with a Belgian coloured belt, distributing coins to people appearing to be from diverse ethnic and religious backgrounds.

The heirs and rights holders of the author of the comic albums, Willebrord Vandersteen, claimed infringement of their copyright in the cover. They brought the claim against Johan Deckmyn, a Vlaams Belang party member and the editor of the calendar, and the association responsible for the party’s funding and promotion, the Vrijheidsfond.

The claimants argued that the parody reproduced the overall aspect of the original Spike and Suzy cover, as well as other typical elements, including the colour, characters, title and font. The main differences between two works were the replacement of the main character with a caricature of Ghent’s mayor, and the replacement of the characters picking up the coins with depictions of immigrants, conveying a discriminatory and offensive message.

Questions referred to the CJEU

The court of first instance in Belgium granted an interim injunction preventing further distribution of the calendar. The defendants appealed, arguing that that the image should fall within the exception for parody, caricature and pastiche under the Directive, as implemented by Article 22(1)(6) of the Belgian Copyright Act 1994. Perceiving an absence of consistency in the legal tests for this exception, the Brussels Court of Appeal decided to refer to three questions to the CJEU:

1. Is the concept of parody an independent concept under EU law?
2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
   1. displaying an original character;
   2. in such a way that the parody cannot reasonably be attributed to the author of the original work;
   3. with an intention to provoke humour or to mock, regardless of whether the criticism is directed at the original work or at something or someone else; and
   4. mentioning the source of the parodied work?
3. Must a work satisfy any other conditions or conform to any other characteristics to be capable of being classified as a parody?

Advocate General’s opinion

Scope of opinion

Before answering the questions referred, the Advocate General clarifies the issues that the CJEU had not been asked to address. Accordingly, it is for the Belgian national court to assess:

1. any infringement of moral rights, which are excluded from the scope of the Directive under Recital 19;
2. the application of the three-step test under Article 5(5) of the Directive, under which copyright exceptions should only be applied in certain special cases that (i) do not conflict with a normal exploitation of the work or other subject-matter and (ii) do not unreasonably prejudice the rights-holder’s legitimate interests; and
3. the particular Belgian limit to the exception, under which the exception only applies if the work is created in accordance with honest practices.

Is parody an autonomous concept?

The Advocate General observes that, in the interest of a uniform application of EU law, parody should be considered an autonomous concept of EU law: the Directive refrains from defining or expressly referring to the Member States for the definition of that concept. Where, however, EU law does not provide sufficient guidelines, the nature of an autonomous concept does not prevent Member States from having a large margin of appreciation to assess the requirements for the exception.

Must a parody satisfy certain conditions or conform to any characteristics?

The Advocate General addresses the second and third questions together, as both relate to the criteria for the exception. According to the Advocate General, there is no significant distinction between the concepts of parody, pastiche and caricature, and he considers them together as they all provide the same potential exception to copyright. He then identifies the common characteristics of a parody, which in his view fall into two categories:

1. Structural characteristics – A parody must be both a copy and a creation at the same time. The nature of parody is that it borrows essential elements from earlier works. For a parody to succeed, the earlier work must be recognisable to the public. Yet the elements borrowed from the original work must then be distorted to alter its point, making it a creation in its own right. It is for the national court to determine whether a work incorporates enough new elements not to constitute a mere copy of the original work with insufficient alteration. In making such determination, each Member State can adopt its own particular criteria, such as absence of confusion, distinguishability, or confinement of copying to necessary elements.
2. Functional characteristics – A parody has three functional aspects:

1. Subject – This does not need to be the original work: the parody can target the earlier work or its author, or a third subject outside the source work (as in the present case).
2. Effect – This must be humorous. But since comic effect can be interpreted in very different ways in different countries, it is for the national courts to assess whether a parody is sufficiently humorous.
3. Content – This must be consistent with fundamental rights under the EU Charter of Fundamental Rights. While copyright is a fundamental right (Article 17(2)), the parody exception should not be refused merely because the author of the original work does not approve. Equally, it is important that national courts bear in mind freedom of expression, a cornerstone of any democratic society. National courts should, however, consider the potential conflict between (A) freedom of expression (Article 11(1)) and (B) human dignity (Article 1) and non-discrimination based on cultural, religious and linguistic diversity (Article 22). The exception should not apply to parodies that are “radically contrary” to the “fundamental values of a particular society”, and the relevant national courts should weigh up the competing rights in the circumstances of each particular case.

Comment

By viewing parody as an autonomous concept of EU law, the Advocate General follows the CJEU’s consistent endorsement of the need for a uniform application of exceptions to copyright across the EU. If the Advocate General’s opinion is followed by the CJEU, significant scope will remain for the national courts to evaluate the content of parodies and to determine whether individual cases fit the criteria for the exception: it will be for national courts to assess whether an individual parody demonstrates enough creativity not to be a mere imitation of the original work, as well as having the requisite degree of humour, and by weighing up competing human rights, the national courts will also be able to limit the application of the parody exception where the message is radically contrary to the fundamental values of the society concerned.

In practice, parodists and publishers will appreciate this guidance on their probable scope for creating and distributing parodies, but may be concerned that the door is left open for censorship if certain human rights can be used to quash the application of the parody exception. The creative industries will welcome the likely need for sufficient originality and humour; otherwise, the parody exception would risk sanctioning sound-alike songs and other over-derivative works that could unfairly deprive original creators of rightful remuneration. Yet this legal analysis does not necessarily solve the commercial conundrum of whether the original creator should still receive a financial benefit from the exploitation of the parody (in line with the current practice in the music industry, for instance). The creative industries will also be concerned if “parody” and “pastiche” are not interpreted differently in due course: they have significantly different meanings in common parlance, and with very different effects under English law as it currently stands (a true pastiche not being a copy as such in any event). This case turned, however, on parody, so it may well be that the scope and criteria for “pastiche” will only be considered in greater detail in a case that actually turns on a pastiche.

Since Deckmyn is the first parody case to be referred to the CJEU, the ultimate decision of the CJEU is eagerly anticipated, but is unlikely to be handed down until later in 2014. For now, even if the Advocate General’s opinion does not have binding effect, it is welcome in light of the current confusion around how the exception should be applied. The proposed parody exception under English law has been delayed following certain concerns of the House of Lords Secondary Legislation Scrutiny Committee and the British Copyright Council, although the draft UK legislation has now been re-laid before Parliament with a view to its entry into force on 1 October 2014. The UK exception would allow fair dealing with a work for the purposes of caricature, parody or pastiche and the question now is whether in the context of this exception the UK courts’ approach to fair dealing in copyright works will be affected by the CJEU’s eventual decision in Deckmyn.

Given the groundswell of Eurosceptic opinion in many Member States, it would probably be just as well if the CJEU ultimately leaves a suitable margin of discretion to the national courts, rather than trying to impose a uniform approach to originality and humour from the centre. While a degree of harmonisation of copyright law across the EU is helpful for legal certainty, the main purpose of the parody exception is to encourage creativity, so the law should not be unduly restrictive when applied at local level. In deciding disputes on the ground, national courts will need to be able to see the funny side of it.

Juliane Althoff, Trainee Solicitor, Michael Simkins LLP