In Belgium, parody is no defence for 'appropriation art'

With the City Law School's seminar with Professor Jonathan Griffiths fast approaching (Parody and copyright in European Union copyright law), the CopyKat has only just found time to report on a January case from the parody hotspot of Europe - Belgium  - and an interesting decision from the Court in Antwerp.

Belgian painter Luc Tuymans had never denied that he had based his painting ‘A Belgian Politician’ on a 2010 photograph of the Belgian right-wing politician Jean-Marie Dedecker taken by photographer Katrijn Van Giel, which was published in the Belgian newspaper De Standaard: but Tuymans used the earlier work without asking for the photographer's blessing or pernission. That now seems to have been a rather costly mistake, as Tuymans has lost an action in the Court of First Instance in Antwerp: Tuymans was unsuccessful in arguing that his work was subject to the parody exception and it was found to have infringed Van Giel’s copyright. Tuyman's work was sold to an American collector.

Van Giel's original phorograph

Tuyman's portrait

In his defence to fast-track proceedings initiated by Van Giel, Tuymans argued that the parody exception should apply, saying that his painting was an original work of art which is noticeably different from the picture - and that the irony lies in (i) the duplication of reality, (ii) the criticism of the imagery of Belgian politics and (iii) the title of the painting. A further arguermnt was that the parody exception would also be applicable because the artist's freedom of expression, guaranteed by article 10 of the European Convention on Human Rights, would be in balance with Van Giel's copyright, without causing any prejudice to her or her picture. Throughout his career, Tuymans has used photographic source material as a basis for his paintings – including images of hospital patients, archive portraits of national socialists and Nazis, Belgian seminarists and Ku Klux Klan leaders.

In  C-201/13 Deckmyn v Vandersteen,  itself a reference from Belgium, the Court of Justice of the European Union decided that ‘parody’ is an autonomous concept of EU law and must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also noted 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 this case the Court said that a parody requires a distorted representation of the original work and a clear playful or humorous nature, where satire, parody or sarcasm are the only aims. Reflecting that the painting was a 'mere reproduction' of Van Giel's photo, those conditions were not met, as the picture was not reproduced in a clownish, parodied or sardonic manner. The President of the Court was not convinced by Tuymans’ argument that the parody would be in the title of the work (which is not visible on the painting), nor by the fact that Tuymans adheres to the “appropriation art” movement - and readers might want to contrast the Belgian Court's decision with that of the US 2nd Circuit Court of Appeal in Cariou v Prince: the decision may well prompt a wider debate on just how far the parody exception should extend to in the European Union. The President found that the infringement was "in bad faith", as the artist had previously told the press that the picture of Van Giel was "so strong" that he did not have to adapt it as much as usually required when using pictures as a source of inspiration. That said, writing in the Guardian, Adrian Seale argued "There is an enormous difference between the photograph and the painting. Scale is different. Colour is different. Shadows and highlights are shifted, recast, added to and emphasised, abbreviated and deleted .... Most of all, surface is different."

Frinding infringement, the President of the Court dismissed Tuymans’ defence and ordered him to cease from infringement on pain of a penalty of 500.000 EUR for any infringement which would include any further reproductions of the panting, or showing trhe origial work. 

Judgment of the President of Court of First Instance of Antwerp (Belgium), 15 January 2015, docket number 14/4305/A, Katrijn Van Giel v. Luc Tuymans.

http://www.jdsupra.com/legalnews/belgium-even-a-world-famous-painter-nee-55278/

Could Ladybird bring the first parody challenge?

Appropriation art: More on the latest claim against Richard's Prince here.