PhD student focussing on the parody exception
at the School of Law, University of Nottingham (UK)
The Advocate-General recently issued an opinion on parody, sparking significant interest in the topic. This opinion, while not yet available in English, has been the subject of discussion in legal circles. Further amplifying this attention, the Court of Justice of the European Union (CJEU) has now released its own judgment on the matter. This development is particularly timely given the upcoming implementation of a parody exception within UK copyright law, set to take effect on October 1, 2014.
The facts
At the heart of this dispute is the interpretation of copyright law, specifically Article 5(3)(k) of the Infosoc Directive. This article allows EU member states to establish exceptions to reproduction and public communication rights for works considered to be caricature, parody, or pastiche. The case itself centers on a calendar that parodies the cover of a famous Spike and Suzy (Suske and Wiske) album. This parody was created to promote the political message of the Vlaams Belang party, a Flemish nationalist political party. The original artwork and the parody are depicted above.
The Belgian court of first instance responded by issuing a preliminary injunction against the calendar’s further distribution. However, the defendants contested this ruling. Subsequently, the Brussels Court of Appeal, seeking clarification, referred the case to the CJEU.
The Court’s judgment
Echoing the Advocate-General’s opinion, the CJEU determined that ‘parody’ qualifies as an independent legal concept within the EU. This means it must be interpreted uniformly across all member states. The optional nature of the parody exception does not supersede the principle of consistent EU law application (see Padawan, C-467/08, paras 32-33).
Turning to the interpretation of the parody exception itself, the CJEU underscores that the ‘usual meaning’ of terms prevails in the absence of specific legal definitions. Elaborating on ‘parody,’ the court states that its core characteristics are twofold. First, a parody must evoke an existing work while being distinctly different from it. Second, it must express humor or mockery.
The national court also sought guidance on any additional prerequisites for invoking the parody exception. The CJEU clarified that a parody does not need to be original beyond demonstrating clear differences from the source material. Furthermore, it is not required to be attributable to someone other than the original author, nor must it explicitly reference or credit its source.
The CJEU emphasizes the principle of strictly interpreting exceptions to reproduction and communication rights, as these represent deviations from exclusive rights. However, this strict interpretation must not undermine the exception’s effectiveness (see recital 31 of the Directive, Football Association Premier League and Others, C‑403/08 and C‑429/08, para 163). A ‘fair balance,’ the CJEU asserts, needs to be struck between the interests of authors and the rights of users (see Padawan, C-467/08, para 43 and Painer, C-145/10, para 132). This necessitates courts to weigh the exclusive rights of copyright holders against the freedom of expression of those using copyrighted works.
To illustrate this point, the court refers to the case at hand. The disputed drawing, featuring distorted versions of original characters to convey a discriminatory message, could potentially link that message to the protected work. If the national court finds such an association plausible, it must then balance freedom of expression against the principle of non-discrimination based on race, color, and ethnic origin (Article 21(1) of the Charter of Fundamental Rights). This is rooted in the legitimate interest of rightsholders to prevent their work from being connected to such messages.
Ultimately, the Belgian court is tasked with determining whether the work in question falls under the Directive’s definition of parody and whether the balance between rightsholders and users is adequately preserved.
Comments
The court’s decision to classify parody as an autonomous concept is not unexpected. This aligns with previous CJEU rulings on other aspects of the Directive, notably the Padawan case (C-467/08). What is noteworthy, however, is how the court defines ‘parody.’ By invoking its ordinary meaning, the court seems to assume a shared understanding of the term across all member states. This is a questionable assumption given the significant debate surrounding the very definition of ‘parody’ even within individual jurisdictions. It’s important to remember that ‘parody’ encompasses a range of concepts, including satire, pastiche, caricature, spoof, irony, and burlesque.
Nevertheless, the court has laid out two key requirements for ‘parody’ under the Directive. First, the new work must reference the original while being noticeably different from it. This, fundamentally, is the essence of parody. The parodist aims to evoke the original work without creating confusion about its creative source. This distinction serves to prevent both artistic confusion (where the public might perceive the parody as a continuation of the original) and economic confusion (where the public believes the new work was authorized by the original rightsholder). Parasitic use is explicitly excluded.
The second requirement mandates that parodies have a humorous element. As ‘humor’ is subjective, this condition could prove challenging in practical application and necessitates further legal precedent. How should ‘humor’ be interpreted? Some jurisdictions adhere to a strict interpretation, while others adopt a broader view encompassing homage and criticism. Furthermore, should this ‘humor’ be assessed based on the parodist’s intent or the audience’s reaction? Lastly, the target of this humor remains unspecified. Must it be directed at the original work, the original author, or a third party? This lack of clarity makes defining the humorous element quite difficult.
Consequently, other potential conditions are set aside. This means a parodist is not obligated to acknowledge their borrowings. Additionally, the volume of the original work used, the parodist’s motivation (such as commercial gain), any impact on the rightsholder’s economic interests, the availability of alternatives (like licensing), and the parody’s originality (in terms of copyright eligibility) are not considered prerequisites for applying the parody exception as defined by the Directive.
While the aforementioned points may not be particularly controversial, the CJEU’s stance on balancing rightsholders’ interests with users’ freedom of expression is likely to generate discussion. The CJEU asserts that rightsholders have a legitimate interest in preventing their work from being associated with offensive messages conveyed through parody. The practical interpretation of this and its potential to undermine the exception’s effectiveness remain unclear. Parody has taken many forms since its origins in Ancient Greece, ranging from lighthearted to dark and biting. Some of these forms might now be at risk.
*Translation of the title quotation is mine. Quotation by Pierre Desproges (French comedian known for his acerbic and dark humour): “On peut rire de tout, mais pas avec tout le monde”.
Barnard & Peers: chapter 9, chapter 14