Wednesday 3 September 2014

Parody, Deckmyn and the right to object to discriminatory messages: today's CJEU ruling

Judgment was handed down today by the Court of Justice of the European Union in Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others, a keenly-awaited ruling on which our colleague Eleonora was off the mark at the speed of lightning to record the case, and her salient thoughts on it, on the IPKat weblog here. For those in search of something less exciting to read, here's a summary which has been kindly prepared by Curia in the form of this morning's unofficial but sort-of-authoritative media release:
"If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message

The only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery 
The copyright directive [Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society: the InfoSoc Directive] provides that authors have the exclusive right to authorise the reproduction and communication to the public of their works. Member States may however allow a work to be used, without its author’s consent, for the purpose of caricature, parody or pastiche.

The parodied work
At a reception held by the 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.

The alleged parody
Taking the view that the drawing and its communication to the public constituted an infringement of their copyright, several of Mr Vandersteen’s heirs and other holders of the rights to that comic book series brought an action against Mr Deckmyn and the Vrijheidsfonds (an organisation financing the Vlaams Belang). Mr Deckmyn and the Vrijheidsfonds asserted before the Belgian courts that the drawing at issue constituted a political caricature and, therefore, a parody, with the result that the exception established by the directive for that type of work must apply. By contrast, Mr Vandersteen’s heirs and the other rightholders asserted that a parody must itself display originality, which was manifestly not the case here. They also alleged that the drawing in issue conveyed a discriminatory message.

The hof van beroep te Brussel (Court of Appeal, Brussels), hearing the matter on appeal, requested the Court of Justice to clarify the conditions that a work must fulfil in order to be classifiable as parody.

In its judgment delivered today, the Court has noted, in the first place, that ‘parody’ must be defined in accordance with its usual meaning in everyday language [though presumably, since the word appears in a piece of harmonising EU legislation, this everyday language definition is going to have to be consistent across the linguistic and cultural ecosystem of 28 disparate Member States], while account must also be taken of the context in which it is used and of the objectives pursued by the directive. In that regard, the Court notes that, in everyday language, the essential characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery.

By contrast, 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 [does this need to be spelled out? If the difference between the underlying work and the work parodying it isn't noticeable, it's not going to be much of a parody ...]. In the same way, it is not necessary that it could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself or mention the source of the work parodied.

In the second place, 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 rights holders 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. [the parameters of 'legitimate interest' cry out for explanation and further case law.  Supposing, for example, the underlying work is discriminatory against one sector of society and the parody involves substituting that sector for another sector? Does the fact that the parodied work is itself discriminatory forfeit its legitimacy?]

It is for the Belgian court to determine, having regard to all the circumstances of the case, whether the application of the exception for parody does strike a fair balance between the differing interests of the persons concerned".
One final observation: the practice of placing crucial text in bold print is ever so useful. Can someone encourage the CJEU to do this routinely with Advocate Generals' Opinions and CJEU judgments, not just at the end, in the active part of the ruling, but in the middle too?

1 comment:

Howard Knopf said...

Dear Jeremy:

Well, this could be a slippery slope. Could there potentially be developing a big humour gap between the EU and the rest of world – at least with the USA? One wonders how the CJEU, in light of this decision, would have looked at the raunchy and arguably anything but “politically correct” rap lyrics of the 2 Live Crew parody lyrics of “Pretty Woman” that pretty soon turns into “Big Hairy Woman” and go rapidly downhill from there….

But it was fine for the US Supreme Court in 1994. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

If you don’t mind, I’ll cross-post this on Eleonora’s excellent comment over at IPKat.