In its recent Deckmyn ruling the European Court of Justice answered preliminary questions about the interpretation of the parody exception under the European Copyright Directive. Although the ECJ interpreted the parody exception quite broadly, it drew a line where the parody conveys a discriminatory message. If that were to occur, the parody would infringe copyright on the original work. The ECJ gives much room for the use of parody, making it more difficult for copyright holders to take action against it.
In 2011 Johan Deckmyn, a member of the nationalist party Vlaams Belang, handed out calendars featuring a parody on the cover of the Suske en Wiske comic “The Compulse Benefactor”. The lead character handing out money had been replaced by the mayor of Ghent, while the people picking the money up had been replaced by women wearing veils and people of colour. The heirs of Suske en Wiske‘s creator sued Deckmyn for copyright infringement, but Deckmyn invoked the parody exception under the European Copyright Directive asserting that the drawing constituted a political caricature. The Belgian court referred the issue to the ECJ asking it to interpret the directive and clarify the criteria for classifying a work as a parody.
The ECJ ruled that parody must be defined in accordance with its usual meaning in everyday language. Accordingly the only and essential characteristics of parody are, on the one hand, to evoke an existing work while being notably different from it and, on the other, to constitute an expression of humour or mockery.
A parody need not display an original character of its own. It also does not have to relate to the original work itself or the source of the work parodied. This is a rather broad interpretation: provided that the parody meets the essential characteristics set out by the ECJ, a copyright-protected work can be used by anybody as a parody. Not only to mock the parodied work or its owner, but also to mock something or somebody completely different.
However, not anything goes. The ECJ noted that when applying the parody exception, national courts must strike a fair balance between copyright holders’ interests and the freedom of expression of the party seeking the parody exception.
If a parody conveys a discriminatory message, the copyright holder of the parodied work may demand that the work not be associated with such a message. And this was of course relevant to this case.
With this ruling the ECJ gives much room to the use of parody, making it more difficult to take action against it. But in cases where the reputation of the copyright holder is at stake or the parody has a commercial nature, the copyright holder may still be able to take action.