The concept of “parody” and its limits: the recent interpretation from the European Court of Justice

The ECJ, asked for a preliminary ruling by the Belgian Court of Appeal, has recently delivered an interesting judgment concerning nature, meaning and the limits of the concept of “parody” as an exception of the exclusive reproduction right, right of communication to the public and right of making protected works available to the public. In fact, according to article 5 of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, Member States may allow a work to be used for the purpose of caricature, parody or pastiche without its author’s consent.

To be more precise, the issue was raised by the Belgian Court of Appeal, which was asked to solve the dispute between Mr Deckmyn, member of a Belgian political party, and the various heirs of Mr Vandersteen, a Belgian author of comics from the sixties, as well as the holders of the rights associated with its works. During a reception, Mr Deckmyn handed out some calendars, the covers of which featured a drawing that was similar to the one made by the Belgian artist on one of his famous comics. The drawing resembled the episode represented on the original work but the politician modified the traits of the characters originally represented, with a clear intent to create a parody and political propaganda.

The author’s heirs then brought an action against Mr Deckmyn for copyright infringement, objecting before the Belgian courts that the derivative work could not fall within the exception of parody, precisely because of its lack of originality. They also alleged that the drawing at issue conveyed a discriminatory message, so they asked the Judge to ensure that the original work was not associated with such a message.

The ECJ, asked by the Belgian Court of Appeal to clarify the conditions that a work must fulfil in order to be classifiable as parody, stated that:

–          The concept of “parody” must have an autonomous and uniform interpretation throughout the European Union and must be defined in accordance with its usual meaning in everyday language;

–          the essential characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humor or mockery; an original character, other than that displaying noticeable differences with respect to the original parodied work, is not necessary.

On the matter of the discriminatory aspect, the European Judge stated that, in case the parody conveys a discriminatory message, generating, as an effect, the association of the message with the original work, the copyright holders have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message. The Court underlines that it is necessary to respect a fair balance between the interests and the rights of authors and other rights holders and the freedom of expression of the person who wishes to rely on the exception provided by article 5.

If the drawing at issue respects the essential conditions required to be considered a parody and then falls within the exception of parody provided by Directive 2001/29/EC, it is for the Belgian Court to determine whether or not the form of expression used for the derivative work strikes a fair balance between the differing interests of the persons concerned.

Regarding the application of the concept of “parody” in Italy, the exception of parody provided by article 5 of Directive 2001/29/EC has never been expressly adopted into national copyright law. However, the legitimacy of parody has been recognized in Italian case-law by referring to the freedom of expression provided by article 21 of the Italian Constitution, as well as the freedom of art and sciences recognized by article 33, and also by referencing to article 70 of the Italian Copyright Law, which recognizes and protects the aim to criticize.