Authors must accept that their works may be used by others to form part of a parody. That is the result of a European Court of Justice ruling, which also finds that "parody" is a common European concept.

In a case concerning the use of a copyrighted drawing in a calender, the European Court of Justice has ruled that a work may be used without the consent of its author provided this use of the work constitutes a parody. 

The case relates to a provision in the Copyright Directive (also known as the InfoSoc Directive). Under that Directive, EU Member States may exempt from the author's exclusive right for reproduction and communication to the public if the work at issue is a parody or caricature. 

At the same time, the European Court of Justice found that "parody" is an EU law concept of copyright law. Thus, the concept must be interpreted uniformly within the EU. 

Preliminary questions to the European Court of Justice The Belgian courts of law referred the following three preliminary questions to the European Court of Justice for interpretation: 

  1. Is the concept of "parody" an independent concept in European Union law?
  2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
    • the display of an original character of its own (originality);
    • and such that the parody cannot reasonably be ascribed to the author of the original work;
    • be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
    • mention the source of the parodied work? 

The author argued that in order for the parody exception to apply, the use had to have a critical purpose, the parody itself showing originality, displaying humorous traits, seeking to ridicule the original work and not borrowing a greater number of formal elements from the original work than is strictly necessary in order to produce the parody.

Furthermore, it was argued that the work at issue contained a discriminatory message, and the author of the original work had a separate interest not to be associated with such message. 

European Court of Justice ruling: Rightholders have to accept parody

In respect of the first question, the European Court of Justice took into account that "parody" in a copyright law context is an autonomous concept of EU law that must be interpreted uniformly throughout the European Union. 

The European Court of Justice examined questions two and three together: 

According to the European Court of Justice, a "parody" is characterised by resemblance to an existing work, while being noticeably different from it. Moreover, it is a requirement that it constitutes humour or mockery. 

It is not a requirement that the humorous or mocking element should be directed at the original work itself, nor is the concept of parody subject to the conditions that the parody should display an original character of its own, other than that of displaying "noticeable differences".

The Court does not seem to make any final conclusion as to when the "noticeable differences" are so noticeable that they constitute an original work. Here, it must be emphasised that the parody must still evoke an existing work. However, in practice, that should be of less significance, as parodies in most cases aim at resembling an existing work in a caricatured version.

The European Court of Justice also finds that a parody must strike a fair balance between, on the one hand, the interests of the author and, on the other, the general freedom of expression. In that respect, the European Court of Justice points out that the author has a legitimate interest in not being associated with messages that do not observe the rules on equal treatment irrespective of race, skin colour or ethnic origin, etc., under the rules of EU law.

The Belgian courts of law to decide in this case have yet to reach a final decision.

The case in brief

In 2011, a member of the Belgian national socialist party, Vlaams Belaang, handed out calendars. On the cover page of those calendars appeared a drawing resembling an existing comic book. The original drawing shows a person throwing coins to a group of people who is trying to pick them up. In the disputed calendar, the local mayor is throwing coins to a number of coloured people wearing veils. Both drawings carry the original title De Wilde Weldoener (which may roughly be translated as The Compulsive Benefactor), just as the rest of the original drawing is used in the parody.

The owners of the copyright to the comic books found that the calendar constituted an infringement of the original work's copyright and brought an action before the Court of First Instance in Brussels, and the court found in their favour.

It was not disputed that the drawing was a reproduction of the original, copyrighted work.

The defendant appealed against the court's decision claiming that the disputed use of the original drawing was an expression of legal parody under Belgian law. The Belgian appeal court decided to present the above preliminary questions to the European Court of Justice, and ruling was given on 3 September 2014.

Future significance of the case

To a large extent, this case affirms what has in many years been generally assumed in Danish law – that it is allowed to use copyrighted works as part of parodies and travesties without infringing the author's right of integrity.

An interesting aspect of the ruling is that now, there is a common European concept of parody in relation to copyright law. Including that the Court separately considers the author's legal interest of not being associated with messages infringing the ban on discrimination under EU law.

Thus, the ruling will not change the legal position in Denmark, but it provides, on the other hand, a number of principles for how future parodies should be assessed in relation to copyrighted works.