Although European countries certainly do not share a uniform sense of humour, the European Court of Justice ("CJEU") has found a way to unify the elements that should characterize a parody in all EU countries from a copyright-law perspective, as well as the conditions that may be considered when assessing a parody's lawfulness. In its decision of 3 September 2014 in a case between a Belgian politician and the copyright owners of the Suske & Wiske (or Spike & Suzy, Bob & Bobette, etc.) comic book series, the CJEU held that the term "parody" is an autonomous EU-law term and explained what a lawful parody should generally entail.
The facts and preliminary questions of case C-201/13
At a 2011 New Year's reception hosted by the Belgian city of Ghent, Johan Deckmyn, a politician for the Flemish nationalist party Vlaams Belang, distributed calendars with a particular drawing on the cover. The drawing was based on the cover of the Suske & Wiske comic book "De Wilde Weldoener" (roughly translated by the CJEU as "The Compulsive Benefactor") which was written in 1961 by the Belgian author Willy Vandersteen. In the drawing on the calendars the character Lambik, wearing a white tunic and throwing coins at people, was replaced by the mayor of Ghent (Daniël Termont), while the people trying to pick up the coins were replaced by veiled people and people of colour (see the pictures in this newsflash).
The holders of the copyrights associated with the Suske & Wiske series (Vandersteen's heirs and publisher) claimed that the drawing constituted copyright infringement. The Court of First Instance in Brussels indeed ordered Deckmyn and his co-defendant to cease using the drawing, but the latter appealed and the Brussels Court of Appeal subsequently found it necessary to ask the CJEU certain questions regarding the term "parody" as used in Article 5(3)(k) of the Copyright Directive (2001/29/EC). This provision allows EU Member States to include in their legislation an exception to the copyright owner's rights for the purpose of parody (the "parody exception"). In particular, the Court of Appeal wanted to know whether the concept of "parody" is an autonomous concept of EU law and if so, whether a parody must satisfy certain conditions, of which the court gave a list of examples (e.g. displaying an original character of its own, expressing criticism relating to the original work, mentioning the source of the parodied work, etc.).
Decision of the CJEU
The CJEU confirmed that where a provision of EU law makes no express reference to the law of the Member States for the purpose of determining its meaning and scope, the terms of that provision must be given an autonomous and uniform interpretation throughout the EU. The fact that Art. 5(3)(k) is only of an optional nature does not mean that the Member States that have chosen to implement the parody exception are free to determine its scope in an unharmonised manner.
So what qualifies as a parody then? According to the CJEU, the essential characteristics of a parody are (i) to evoke an existing work, while being noticeably different from it, and (ii) to constitute an expression of humour or mockery. Although any exception to the rights provided for in the Copyright Directive, such as the parody exception, must generally be interpreted strictly, such interpretation must also enable the effectiveness of the exception to be safeguarded. Therefore, the concept of "parody" is not subject to any of the other conditions suggested by the Brussels Court of Appeal, as those conditions do not follow either from the usual meaning of "parody" in everyday language or from the wording of the parody exception itself.
However, the application of the parody exception must strike a fair balance between the interests of the copyright owner(s) and the parodist's freedom of expression. It is for the national court to determine, in the light of all the circumstances of the case, whether the application of the exception – assuming that the drawing at issue fulfils the essential requirements of parody – preserves that fair balance. In particular, the CJEU pointed out that in this case the national court should assess whether the drawing at issue conveys a discriminatory message (this being contrary to the EU principle of non-discrimination) which has the effect of associating the protected work with such a message. If that is indeed the case, the copyright owners have a legitimate interest in ensuring that their work is not associated with that message, said the CJEU.
Several courts in EU countries (including the Netherlands) have developed certain criteria which a parody must meet in order to be considered lawful. Examples are the absence of competitive motives, the absence of a risk of confusion, an intention to ridicule the parodied work itself and the copying of only as many elements as are strictly necessary to create the parody. The CJEU's decision makes it clear that a parody should no longer be required to meet any of these criteria, other than that of showing noticeable differences from the original work and that of seeking to be humorous or to mock. Although every parody should be judged – in light of the fair balance test – on its own merits and will certainly not be funny or even acceptable to every EU citizen, it is nevertheless good to know that the CJEU sees parodies as an appropriate way to express an opinion and does not subject them to overly strict conditions.