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.

Still thinking of Deckmyn, parodies and EU copyright? You are not alone!

The original work ...

On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Deckmyn [here, here, here]. 

As 1709 Blog readers will remember, this was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of the InfoSoc Directive. 

This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.

Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this 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. 

... and its alleged parody

The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.

I was very much intrigued by Deckmyn, as it also seems to me that this decision is not limited to parody, but is indeed topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law.

Similarly to what has happened in relation to other aspects of copyright, eg the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.

So, I decided to write an article on this (entitled Just a matter of laugh? Why the CJEU decision in Deckmyn is broader than parody), which has now been accepted for publication in the Common Market Law Review.

My contribution is divided into two parts. The first part explains the background to this reference, and summarizes the Opinion of Advocate General Cruz Villalón on 22 May 2014 [here] and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.

If you are interested in these issues, you can find my article on SSRN here.