Deckmyn v Vandersteen (Case C-201/13)
This is a case before the Court of Justice which concerned a famous comic strip in Belgium called Spike and Suzy and a parody of it by a Flemish Nationalist Party called Vlaams Belang, meaning Flemish Interest, in English. Spike and Suzy was created by Willy Vandersteen.
The political party of Vlaams Belange wants independence for the Flemish part of Belgium and, also, are in favour of curbing immigration. They are derived from another political party called laams Blok.
The owners of the rights to the comic strip of Spike and Suzy asked for an interim injunction. The nationalist party of Vlaams Belange argued against this using the defence of parody exception, which is written into the Belgian Copyright Act and, also, their right to freedom of speech.
The case centred around a calendar that had been produced by Vlaams Belange and circulated by them in January 2011. The calendar showed the character of Ambrose, featured in the comic strip, who was attired in a white gown tossing coins to people, the front of the calendar replicating the comic strip cover. On the front the character of Ambrose was superimposed with the likeness of the Mayor of Ghent.
The original court had not allowed the defence of parody exception given by Vlaams Belange. The court found what had been done was, not to attack the comic strip creators work but to use that work, the Spike and Suzy comic strip, to have a go at the Mayor of Ghent. Therefore the court granted an interim injunction.
An appeal was made against that decision and the Brussels Court of Appeal requested a preliminary ruling from the Court of Justice of the European Union (CJEU) asking for help as to how they could utilise parody exception within the workings of the EU law on copyright.
The CJEU had made a note of the conflicting rights when making reference to Article 5(3)(k) of Directive 2001/29, the rights and interests of people as noted in Articles 2 and 3 of that directive against the freedom of expression of the person who is making use of that copyright matter who, when using that work, is reliant upon the parody exception as defined in Article 5(3)(k).
The CJEU judgment on the 3rd September 2014 defined parody as firstly, bringing to mind an existing work but, which work, is produced as being very different from the original work and secondly that parodied work being conveyed to others to appear mocking or humorous. Further, that it could not be ascribed to the person who created the original work and that original work is not referred to.
The CJEU in their definition of the concept of parody observed that there was no dispute that parody is a way to express an opinion. Whether the parody is “noticeably different” will be decided by the national courts or whether the parody expresses “humour or mockery” would have to be decided by each court acting with caution as they, or the judge, will have to decide whether the parody consists of humour or mockery which is within their own personal opinion, there is no jury to decide this.
The CJEU noted that the copyright holders retained an interest in protecting their work as they would not want to be associated with any discriminatory message which the parody of their work gave out even if the calendar, the subject of this case, might be considered to be a parody by the court. However it could not follow that this argument could be put forward to disregard the parody exception and as such impede the rights of that person to freedom of political expression.
As to whether a copyright claim interferes with a person’s right to freedom of expression would be decided by the individual national courts and the European Court of Human Rights. The CJEU has found that each EU member state must look at parody exception in conjunction with each of their individual copyright laws and make this a part of their copyright law. There has to be an equal balance between enforcing copyright and an individual’s right to freedom of expression and information.