CJEU defines works of parody and rules that rights holders' interests must be considered

Out-Law News | 04 Sep 2014 | 10:15 am | 3 min. read

Copyright owners can demand that their material is disassociated from works of parody that convey a discriminatory message, the Court of Justice of the EU (CJEU) has ruled.

The CJEU said that a balance must be struck between the rights of creators to publish their views and opinions through parodies and the rights and interests of the rights holders to the original works being parodied when determining whether those works can be legitimately copied under EU copyright rules.

If parodies convey a discriminatory message then rights holders can demand that their original works be disassociated from those parodies, it said.

The CJEU was ruling in a case referred to it from Belgium where a comic book author's heirs had sued a politician and a political party for copyright infringement after the politician published a calendar displaying a drawing that resembled a previous work published by the comic book author.

The politician, Johan Deckmyn, has claimed that the reproduction of elements of the copyrighted drawing in the calendar was a work of parody and therefore qualified for protection from copyright infringement claims.

However, the rights holders to the original drawing argued that the reproduction of the drawing in the calendar could not be classed as a parody. To qualify as a parody, works should "fulfil a critical purpose; … show originality; display humorous traits; seek to ridicule the original work; and not borrow a greater number of formal elements from the original work than is strictly necessary in order to produce the parody", the rights holders claimed, according to the CJEU's ruling.

In addition, the comic book author's estate took exception to the reproduction of its work by Deckmyn because the drawing published in the calendar "conveyed a discriminatory message". They claimed the drawing published in Deckmyn's calendar contained discriminatory undertones.

EU copyright laws provide general rights to copyright owners to control the reproduction and communication to the public of their protected works. However, a number of exceptions apply to those monopoly rules.

EU law permits member states to write national laws to enable copyrighted material to be used "for the purpose of caricature, parody or pastiche" without rights holders' permission. Such an exception has been written into Belgian law. A new parody right is also scheduled to come into force in the UK next month.

In its ruling the CJEU defined what constitutes a 'parody' for the purposes of EU copyright law.

A parody is one which "evoke[s] an existing work, while being noticeably different from it" and which "constitute[s] an expression of humour or mockery", the CJEU said.

A parody does not have to "display an original character of its own" other than displaying "noticeable differences with respect to the original parodied work". This means that the parody should be capable of being "reasonably … attributed to a person other than the author of the original work itself" and "should relate to the original work itself or mention the source of the parodied work", it said.

Works of parody can be prohibited if their reproduction and publication of original copyrighted material does not achieve a "fair balance" between the parody creators' freedom of expression rights and the rights and interests of the rights holders, the CJEU said. "All the circumstances" relevant to an individual case "must be taken into account" in an assessment of whether a 'fair balance' has been struck, it ruled.

The CJEU said that it is up to the Belgian court to determine whether the drawing in Deckmyn's calendar "conveys a discriminatory message" which the original copyrighted drawing is associated with.

It said, though, that if the Belgian court does reach that finding then the "principle of non-discrimination based on race, colour and ethnic origin", guaranteed under EU laws, would apply and that copyright holders would "have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message".

Copyright law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said the judgment was helpful in defining what a parody is and in setting ground rules for satirists ahead of the introduction of new rights to parody copyrighted works in the UK next month.

“This is a timely judgment given that as of 1 October there will be, for the first time, a parody exception introduced into UK law, implementing an element of the EU’s Information Society Directive from 2001, which should provide welcome relief to many satirical publications wishing to poke fun at the news stories of the day,” Connor said. “The case makes clear that in order for a parody to work it must be referable to the original work which is being parodied but must be careful to strike a fair balance and not go too far.”