On 15 January 2015, the president of the commercial court of Antwerp rendered his decision in the case of the well-known Belgian painter Luc Tuymans against the press photographer Katrijn Van Giel.

Luc Tuymans is an internationally renowned artist whose paintings are sometimes based on photographs. One of his recent works was based on a picture that Katrijn Van Giel had taken of the Belgian politician Jean-Marie Dedecker after last year’s elections, which were heavily lost by Mr Dedecker. The picture was published in a Belgian newspaper and Mr Tuymans decided to reproduce the picture in a painting. He sold the painting to an American art collector for a reported sum of several hundred thousands of euros.

The photographer had not given her consent to the reproduction of her photograph and filed suit for breach of copyright law.

The court sided with the photographer. It found that the picture of the Belgian politician was an original work of authorship and that the author (the photographer) was therefore entitled to claim protection under the Copyright Act. The court also found that the painting of Mr Tuymans constituted a reproduction of the photograph. Even though Mr Tuymans’ particular style was reflected in his painting, the original elements of the photograph were also present in the painting.

Mr Tuymans raised the parody defence, but this defence was rejected by the court. According to the court, the mere fact that Mr Tuymans added his personal interpretation to the picture does not mean that there is parody, as there is no humour, irony or sarcasm in the painting.

The Court of Justice of the EU has recently given guidance about the parody exception, in the case concerning the Belgian comic strip characters Suske & Wiske, which were used in an advertisement for an extreme right-wing political party (CJEU 3 September 2014, C-201/13). The Court of Justice ruled that the essential characteristics of parody are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery.

Since there is no humour or mockery in the painting of Mr Tuymans, the parody exception was rejected.

The court ruled that Mr Tuymans wilfully breached the copyrights of the photographer Ms Van Giel and he has been enjoined from further reproducing the picture. It is most likely that Ms Van Giel will now claim damages, which could be very high, given the finding of wilful infringement.

The judgment was heavily criticized in the press by other artists, who stated that it is common to reproduce works of fellow artists and give new interpretations of existing works. The artists should, however, applaud the findings of the court in the Tuymans case, because the court correctly applied the Copyright Act which – after all – was specifically designed to protect artists’ interests!