On 3 September 2014, the ECJ handed down its judgment in Case C-201/13 Deckmyn en Vrijheidsfonds in which it gave guidance regarding the parody exception to copyright under Article 5.3(k) of Directive 2001/29/EC ("InfoSoc Directive").
This judgment follows the opinion of Advocate General (AG) Pedro Cruz Villalon of 22 May 2014 (See, VBB on Belgian Business Law, Volume 2014, No. 5, p. 9, available at www.vbb.com) and is in response to a request for a preliminary ruling from the Brussels Court of Appeal (Hof van Beroep/Cour d'appel) in the course of proceedings between Mr. Deckmyn and the right holders of the "Suske en Wiske" comic books.
In 2011, Deckmyn, a member of the far right party Vlaams Belang, distributed a calendar featuring on the front page an adaptation of the cover of a "Suske en Wiske" album entitled "De Wilde Weldoener" ("The Wild Benefactor"). The modified version of the cartoon depicted the mayor of Ghent flying over the city throwing gold coins to people on the street who were veiled or belonged to minority ethnicities, while Suske and Wiske were looking at the scene with an expression of concern. The right holders argued that the calendar cover displayed all the general characteristics that are typical for a "Suske en Wiske" comic book cover. They maintained that the similarities between the two covers could confuse readers who may be led to believe that the "Suske en Wiske" comic books support the political opinion shown.
The ECJ now held that, in order to define the concept of ‘parody', reference must be made to its "usual meaning in everyday language". From this usual meaning, the ECJ specifies three essential characteristics of a parody: (i) it evokes an existing work; (ii) while being noticeably different from it; and (iii) constitutes an expression of humour or mockery. The ECJ rejected the additional conditions suggested by the Brussels Court of Appeal in its request for a preliminary ruling, namely 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".
Furthermore, the ECJ drew attention to the principle of non-discrimination based on race, colour and ethnic origin. In the case at hand, the original characters who were picking up the coins had been replaced by persons wearing veils and persons of colour. The ECJ held that if the principle of non-discrimination is infringed, copyright holders have "a legitimate interest in ensuring that the work protected by copyright is not associated with such a message". Yet, the Court did not offer any explanation on how the right holders could achieve this, indicating only that the national courts must determine, on a case-by-case basis, whether or not the principle of non-discrimination is being respected.
The ECJ added that the application of the exception for parody must strike a "fair balance" between, on the one hand, the interests and rights of authors, such as the intellectual property rights in their own work, and, on the other hand, the freedom of expression of the person who relies on the exception of Article 5.3(k) of the InfoSoc Directive. The ECJ again left it to the referring court to judge whether there is such a fair balance in the application of the parody exception.
