Parody and copyright: the decision of the Court of Justice of the European Union

This is a balanced judgment whereby the CJEU confirmed that parody is an exception to copyright and, therefore, the owner of the parodied work cannot claim any right on the satirical derived opera


The facts

On January 9th 2011, a Belgian politician (Mr. Deckmyn), at a New Year’s celebration party, distributed a calendar to his guests. It contained a drawing very similar to the cover image of the album “The Hindu Tomb” from the comics Bob and Bobette which are very popular characters in Belgium. The heirs of Willy Vandersteen (the creator of Bob and Bobette) decided to apply to the Court of Bruxelles to prevent the spread of the calendar. At first, their application was accepted and the Court declared a violation of copyright. The defendant was ordered to withdraw the calendar. The Appeal judges referred the case to the CJUE, submitting two questions:

1) If the concept of parody is independent, should it be interpreted based only on the law of the UE?

2) If the parody has to present a grade of originality that enables the reader to discern the original work from the parodied one thereby helping to indicate to the reader that the designer of the parodied work is not the same person who designed the original work?

Aspects of the case

The most interesting aspects of the case (C-201/13) deal with the criteria of parody and the remaining possibilities of the rights holders if they do not want  the original work to be  associated with a parody when that parody contains an (alleged) message of discrimination or “hate speech”. The directive 2001/29 on copyright and related rights established a need to ensure “a fair balance between rights and the interest of the various categories of holders, as well as between the various owners and users of the subject matter”. It also inserts parody and caricature among the exceptions to copyright in art. 5

The decision of the CJUE (September 3rd 2014)

Regarding the first question, the CJEU, considers that the notion of “parody”, in the absence of a legislative definition, has to be understood on the basis of the usual meaning of the term in everyday language. The opera parody should therefore “evoke an existing work, while presenting perceptible differences compared to the latter,” and secondly, “constitute an act or mocking humor.”

Regarding the second point, however, the sentence is related to the notion of “balance”: the use of an image of others, modified and parodied, determines the creation of a new work.

Ultimately, the parody must be limited to contain easily recognizable differences compared to the original work and must not create confusion about the authorship of the works. It is not necessary, however, that the primary work has to be cited, nor that compensation is due to its author.

The CJEU is very decisive and clear :

“The concept of ‘parody’ is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work”.

Copyright holders can still oppose a parody, if the parody contains a discriminatory message with which they do not want to be associated. It is now up to the national courts to determine whether the application of a copyright claim clearly interfering with the right of freedom of expression can be sufficiently justified as necessary in a democratic society.