What is a parody? Does a parody have to be actually funny or is it sufficient that its author intended it to be funny? Are there any limits to one’s own right to parody? These are all questions that will have most surely crossed your mind at some point, perhaps while watching something like the Chatroulette version of Miley Cyrus’s “Wrecking Ball” video.
What you might have also wondered is why a parody potentially raises legal issues in the first place. The reason is that a parody involves the re-use of someone else’s work. More often than not, the latter is a work protected by copyright. Among other things, copyright grants authors the exclusive right to reproduce – in whole or in part – their works, and do so by any means and in any form. The author has also the exclusive rights to communicate/make their works available to the public, and distribute them.
There are of course exceptions to copyright protection that allow third parties to use one’s work without having to ask for permission first. An example is indeed Article 5(3)(k) of the main EU directive in the area of copyright (Directive 2001/29, also known as the InfoSoc Directive). This provision allows the Member States of the European Union (EU) to introduce into their own copyright laws an exception to copyright “for the purpose of caricature, parody or pastiche”. Incidentally, this is the same provision that allowed the United Kingdom to introduce – amongst others – a new exception for parody, caricature and pastiche into its own copyright law earlier this year.
“It would be unduly restrictive if only actually funny people were able to enjoy the right to parody as part of their freedom of expression”
Defining the notion and requirements of a parody from a copyright perspective might look like a daunting task. Yet, this is what the Brussels Court of Appeal asked the Court of Justice of the European Union (CJEU) to do a few months ago. This Belgian court made a reference for a preliminary ruling to the highest EU court in the context of proceedings between the estate of the late Willy Vandersteen and the members of Flemish nationalist political party Vlaams Belang.
During a public event in early 2011, the Vlaams Belang distributed a calendar whose cover reproduced a modified version of the cover to a comic book of the popular Suske en Wiske series by Willy Vandersteen. The drawing at issue resembled that appearing on the cover of the Suske en Wiske comic book entitled The Compulsive Benefactor (De Wilde Weldoener). The original drawing by Mr Vandersteen represented one of the comic book’s main characters wearing a white tunic and throwing coins to people who are trying to pick them up. In the drawing used by the Vlaams Belang, that character was replaced by the Mayor of the City of Ghent and the people picking up the coins were replaced by people wearing veils and people of colour.
The Vandersteen estate and the holders of the rights to De Wilde Weldoener brought proceedings against the representatives of the Vlaams Belang before the Brussels Court of First Instance, arguing successfully that the drawing that the latter had used as the cover to its calendar amounted to an infringement of copyright in the original drawing by Willy Vandersteen. This decision was appealed to the Brussels Court of Appeal on grounds that – among other things – the calendar cover fell within the scope of Belgian exception for parody, caricature and pastiche.The Court of Appeal decided to stay the proceedings and seek guidance from the CJEU as regards both the understanding of the concept of ‘parody’ and the characteristics that a work must possess to be considered a parody.
In its decision in September 2014, the CJEU held that a parody must be understood according to its usual meaning in everyday language, and has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, to constitute an expression of humour or mockery.
With particular regard to the latter, it is worth highlighting that the Court did not clarify whether it is sufficient that a parody pursues a humorous intent, or is also required that it achieves a humorous effect. However it would appear fair to assume that a humorous intent suffices. This is also because the right to parody is protected within freedom of expression. Requiring just intent appears more compliant with the need to safeguard parody as “the right to mock the high and mighty”, as well as the fact that freedom of expression is granted to “everyone” (see Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union). It would be unduly restrictive if only actually funny people were able to enjoy the right to parody as part of their freedom of expression, with those unable to achieve a humorous effect being ineligible for protection.
While acknowledging that the right to parody is protected within freedom of expression, the Court also held that such freedom in not unlimited. A parody that conveys a message that is discriminatory or racist may in fact be ineligible for protection under Article 5(3)(k) of the InfoSoc Directive. According to the CJEU, to state otherwise would contradict the requirement for a fair balance between the rights and interests of the author of the parodied work and the rights of the parodist. It follows that in such instances the person who holds the rights to a work has a legitimate interest in ensuring that the work protected by copyright is not associated with the message conveyed by its parody. It will be interesting to see if the Brussels Court of Appeal finds that in the Vandersteen/Vlaams Belang litigation the parody at hand has gone too far and, if so, on what grounds it motivates its decision.
Featured image credit: Day 249: The Man Who Laughed. Photo by Tim. tjdewey. CC-BY-NC-SA-2.0 via Flickr.