The well-known Belgian painter Luc Tuymans has based his painting ‘A Belgian Politician’ on a picture of the Belgian right-wing politician Jean-Marie Dedecker that was made by the professional photographer Katrijn Van Giel, without asking her authorisation. Tuymans unsuccessfully invoked the parody exception and was found to infringe Van Giel’s copyright.
During the federal elections of 2010, Van Giel shot an expressive portrait picture of the Belgian politician Jean-Marie Dedecker which was published in the Belgian newspaper De Standaard. Tuymans has used this picture as a source of inspiration for his painting ‘A Belgian Politician’, which was then sold for a considerable sum of money to a wealthy American.
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Although Tuymans has always recognised that the picture had an original character and that his painting was an adaptation of the picture, he never deemed it required or appropriate to ask Van Giel’s authorisation. In fast-track proceedings initiated by Van Giel, Tuymans argued that the parody exception was applicable and that he, therefore, did not require the original author’s permission.
In order to substantiate his defence, Tuymans argued that his painting is an original work of art which is noticeably different from the picture and that the irony lies in (i) the duplication of reality, (ii) the criticism of the imagery of Belgian politics and (iii) the title of the painting. The parody exception would also be applicable because his freedom of expression, guaranteed by article 10 of the ECHR, would be in balance with the copyright of Van Giel without causing any prejudice to her or her picture.
The president of the Court of First Instance of Antwerp dismissed Tuymans’ defence, judged that Tuymans infringed upon the copyrights of Van Giel and ordered him to cease the infringement on pain of a penalty of 500.000 EUR per infringement of this order.
According to the president, a parody requires a distorted representation of the original work and a clear playful or humorous nature, whereby satire, parody or sarcasm are the only aims. The president ruled that those conditions were not met, taking into account that the painting is a mere reproduction of Van Giel’s picture and that it does not seem that the picture was reproduced in a clownish, parodied or sardonic manner. Moreover, the president was not convinced by Tuymans’ argument that the parody would be in the title (which is not visible on the painting), nor by the fact that Tuymans adheres to the “appropriation art” movement, according to which it would be accepted to transform pre-existing images into a new piece of art without asking for the permission of the right holders.
The president furthermore ruled that Tuymans committed the infringement in bad faith, as he previously confirmed in the press that the picture of Van Giel was so strong that he did not have to adapt it as much as usually required when using pictures as a source of inspiration.
Right of reproduction
This decision has ignited heated media debates during which – ironically – many artists pleaded in favour of a very broad interpretation of the parody exception and the corresponding erosion of the protection offered by copyright laws. While often not being hindered with any knowledge of the file or the decision, the criticism mainly focused on the copyright protection of the picture and on the notion of “plagiarism”, a notion which does exist in Belgian copyright laws. Those very same criticasters also overlooked the fact that the original character of Van Giel’s picture and the reproduction thereof were not even contested by Tuymans.
At stake is the right of reproduction which gives the author of a protected work the right to authorise or prohibit a reproduction of this work “by any means and in any form“. The right of reproduction is very broad and encompasses, apart from the right to make copies, the rental and lending right and the right to exhibit, also the adaptation right, which gives the author the right to authorise or prohibit adaptations of his or her work. Just like a film maker will need to obtain the authorisation from the author for the filming of a novel, a painter who wants to base a painting on a picture will need to obtain the authorisation of the photographer.
The Belgian copyright law foresees a few exceptions pursuant to which the author’s authorisation is not required, including the exception of parody. In the respect of that exception, the Court of Justice of the European Union recently ruled in the Deckmyn case (also known as the Spike and Suzy case, C-201/13) that the essential characteristics of parody are (1) to evoke an existing work, while being noticeably different from it, and (2) to constitute an expression of humour or mockery. Moreover, on the assumption that the essential requirements of parody are fulfilled, a fair balance will still need to be struck between the interests and rights of both parties (notably between the freedom of expression of the user relying on the parody exception and the holder of copyrights on the original work).
In the present case, the president has interpreted the conditions of the Deckmyn case in a somewhat peculiar way and likewise demonstrated a lack of nuance when assessing those conditions. However, in our opinion, a more accurate argumentation would probably have led to the same outcome. It is therefore surprising that the decision has been attacked by artists, who are to be considered as the main beneficiaries of copyright protection.
If Tuymans would intend to make other works based on copyright-protected pictures in the future, it seems recommended to first obtain the authorisation of the rights holder, just as probably any other person would need to do when he would want to reproduce or adapt a work of Tuymans.
Court decision details: Judgment of the president of Court of First Instance of Antwerp (Belgium), 15 January 2015, docket number 14/4305/A, Katrijn Van Giel v. Luc Tuymans.