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European Copyright Law: Parody Addressed by Court

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The Court of Justice of the European Union (CJEU) has recently handed down its full opinion in Case C-201/13 Deckmyn, and in doing so has not only defined what constitutes a parody, but has also given copyright owners the right to demand their material be disassociated with a work of parody in certain circumstances.

 

Background

The national proceedings concerned an interpretation of a well-known 1991 Belgian comic book cover, which was reproduced and then distributed to the public by a far-right political party, Vlaams Belang. The reproduction illustrated the Mayor of Ghent throwing gold coins to immigrants, mimicking one of the characters from the comic.

The original work’s right holders objected to the use of their image and successfully obtained an interim injunction to prevent further distribution of the later work. The defendant argued that their use of the image fell within the Belgian exception for parody, caricature and pastiche under the Belgian Copyright Act 1994, and additionally under Article 5(3)(k) of the InfoSoc Directive (2001/29/EC). The Brussels Court of Appeal referred the case to the CJEU for clarification on the law.  

Ruling of the CJEU

The referring Court had set some of its own conditions considered necessary to define parody, such as: a parody should display an original character of its own; could be attributed to a person other than the author of the original work; and relate to the original work or mention the source of the original work. The CJEU rejected all of those points, holding none are necessary to constitute a parody.  

In fact, all the Court held essential to form a work of parody are two simple characteristics: the work must ‘evoke an existing work while being noticeably different from it’ and it must ‘constitute an expression of humour or mockery’.  

However, the Court was also asked to make judgment on the exceptions found in the InfoSoc Directive. Regarding this issue, the Court has potentially limited the freedom of expression rights of those who wish to create parodies, in favour of the rights owners of the original works, but importantly only when the parody conveys a discriminatory or unsavoury message.  

The Court stated that: “the application of the exception for parody … must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other hand, the freedom of expression of the person who wishes to rely on that exception”.

Therefore, in such circumstances where a parodist creates a work would could be considered discriminatory, the owner of the original work may be able to argue it has a legitimate interest in disassociating itself with the damaging parody and it’s discriminatory message.  

Impact

Although the provisions under the InfoSoc Directive must be applied consistently throughout the EU, national courts have the power to interpret the Deckmyn ruling, and as a consequence, may reach different conclusions on the balancing act required between the interest of rights holders and the freedom of expression.  

A parody exception will be introduced into UK copyright law on 1 October 2014 for the first time. Clearly, an exception for parody being implemented into UK law is a positive thing for those wishing to create such works. But the fact the new provisions will still be subject to the UK’s own fair dealing test on top of the new discrimination test laid down in Deckmyn means all is not lost for copyright owners wishing to protect their original works from more unsavoury versions.  

UK Intellectual Property Dispute & Litigation Funding

Whilst intellectual property litigation is conducted in specialist courts across the United Kingdom (UK) and Europe, enforcing an intellectual property right such as Copyright, trademarks, patents, designs and trade secrets or defending an action for infringement doesn't need to be prohibitively expensive. Advantage Litigation Services have the skills and expertise to help you find an expert IP lawyer as well as a way of funding the IP litigation process. To discuss your contractual dispute today, please call 0800 160 1298 or click here to see how we can help.

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