Comments for ‘Parody’ becomes a concept of EU law: something to applaud or to fear?

Hirotaka Koike
(1)To decide this issues, we need to consider the natures of these three different words. Since the core ideas, to “copy” original and use it for different manner to say something funny or satirical with humor, are mostly same, it should be worth to refer to those three types. The answer to later question is no. There is no arguments…
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(1)To decide this issues, we need to consider the natures of these three different words. Since the core ideas, to “copy” original and use it for different manner to say something funny or satirical with humor, are mostly same, it should be worth to refer to those three types. The answer to later question is no. There is no arguments raised by any side from Judges, Plaintiffs, nor Defendant relating to this disputes.

(2) My answer to this question is yes, it means that freedom of expression can favor, bus also limit. And this is not fear, nor applauded, since this is natural decision. As the CJEU mentioned, the holder of the copyright has « a legitimate interest in ensuring that the work protected by copyright is not associated with such a [discriminatory ] message ». Even though in fundamental rights, there are several types of rights. The freedom of expression is the one of the essential rights to uphold Democracy. However, the rights to be protected by discriminatory treatment is more important than this freedom of expression constitutionally, simply meaning not absolute. A parody could be prohibited by the limit of freedom of expression.
In terms of who decide this issue, I do not agree with the court, since it cause the different protection of human rights and the rights of copyright holders. If national courts can judge only humor or not, it is understandable to avoid the Europeanisation of humor. However, if they can decide also the human rights-respected use of parody or abusing human rights and rights of copyright holders, for instance this case to use parody for discrimination, it could be making infringement of rights in some contries.

(3) Yes mostly, since the UK Copyright Act highlights only one of two criteria: only to make use of a limited, moderate amount of someone else’s work based on the legal terms Fair dealing. However, when you go through the idea of UK new act, there are clear parallelism between each other. Moving on the disputed issue of rights not to be used for discriminatory way, the given guideline clearly mentioned as follows: ”copyright law expressly protects an author’s moral right to object to” derogatory treatment” of a work.” Back to first idea “mostly”, I do not believe UK have huge concern on this matter, their biggest concern is “amount of pieces used in parody” in my opinion.

(4) The conditions for a parody to be exempted under trademark law (under EU law) do not completely fit with the requirements recently outlined by the CJEU in Deckmyn, since the core idea of trademark is avoiding confusion and the purposes of trademark and copyrights, more specifically the work, are different. If we have a look at similar points, the examination for trademark, such as “likelihood of confusion”, would be able to go along with the requirements by the CJEU decision. Both clearly require the distinguish between the parody and original work. However, trademark invites parody because as the company invest a number of money on it, as the trademark would be popular, more and more people would likely use it for parody to raise only humour, but sometimes political messages regarding private policy , for instance google, facebook. In this respect, sometimes they would be used only for a humour, sometimes for criticising. Should we have to apply their rights not to be criticised through the trademark parody? And also having in mind about practise, it is not easy to anticipate the trademark parody company or products. Therefore, the condition for parody to be exempted in trademark law should be more flexible and easier than copyrights.

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Dubray Lucie et Benjamin de Vanssay
Concerning the first issue, we think that there are some arguments that can be in favor of having a law provision referring to parody solely but also to parody as well as caricature and pastiche. Indeed, even if there are some essential conceptual differences between these three types of « comments », they have the same purpose namely the humoristic…
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Concerning the first issue, we think that there are some arguments that can be in favor of having a law provision referring to parody solely but also to parody as well as caricature and pastiche. Indeed, even if there are some essential conceptual differences between these three types of « comments », they have the same purpose namely the humoristic denaturation and transformation of a well-know work and their legal regime is almost the same. Moreover, we can emphasize the fact that a work has to be protected independently of the type of comment that is done whether it is a parody, a caricature or a pastiche. That’s why we can defend the theory to have a law provision referring to parody as well as the two other “genres”. However, like I said just before, there are some conceptual differences between all these types of comments, then, we can defend the theory of an individual exception of parody without the two other types of comments. It will be more specific and maybe more adapted for some situations where the particularities of the transformation of a work protected are important to judge the case.

For the second issue, we consider that is interesting to show how freedom of expression can favor the speech for parody purpose or, on contrary, limit it. As we have seen in a lot of cases, a balance of interest is essential in some situations most notably when there is an opposition of some fundamental rights at stake. The freedom of expression, decreed in Article 10 of the European Convention of Human Rights and in Article 11 of the European Charter, can be use to protect the speech for parody. Indeed, the freedom of expression can be invoked as an exception that authorizes the transformation and the denaturation of a protected work in some cases. This exception will guarantee the legitimate use of parody. But, this use has to be surrounded by restrictive conditions in order to not cause an irreversible damage to the author of the protected work. We have to preserve his reputation. As a result, a « test of proportionality » can be applied to surround the use of freedom of expression as an exception to the transformation of a protected work. But, at the end, in some circumstances, we can see that parody’s interest should prevail over the interest of the author. However, this test of proportionally can restrict the parody purpose because it requires some essential conditions. Then, if a parody doesn’t respect them, the interest of the author of the work protected should prevail on the parody’s interest. As a consequence, the freedom of expression can be used in two different ways.

Concerning the third issue, we observe that the expectation explained in the official documents fits with the parody concept and the criteria defined in Deckmyn. As we can see in the document, the exception defined is almost the same that we can find in the case of Dekcmyn. Of course, we can emphasize some slight differences between both because the law is changing to allow people to use limited amounts of another’s material without the owner’s permission. But this change only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” It means that we can only use a limited and a moderate amount of a protected work of someone else.

Finally, regarding the fourth issue, we consider that the conditions for a parody to be exempted under trademark law doesn’t fit with the requirements outlined in Deckmyn. As we can notice, there is no clear exception for parody in Trademark Directive (directive 2008/95/EC under EU law). Deckmyn decision is only about the definition of parody in the copyright context. Then, it will be difficult to transpose the conditions for a parody in the copyright context in the trademark context because trademark law and copyright law serve different purposes and there are some substantial differences between both. As a result, we can justify the fact that a different approach of parody, in the case of the copyright or the trademark context, has to be applied because it could lead to some unsatisfying results to include a similar exception for parody in trademark law and to allow a court to employ in a trademark case the same conditions for parody as developed by the Court of Justice of EU in the Deckmyn case. We have to respect the specific features of each intellectual property rights.

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Laura Pietrella and Anna Morra
1) Considering the usual meanings of the three terms of parody,caricature and pastiche in the common language, it can be noted that all three have humorous purposes, but it can be detected a subtle difference in so far as the parody and the pastiche directly copy existing works, whereas caricature can also make only an exaggerated emphasis of behaviours, physiognomic…
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1) Considering the usual meanings of the three terms of parody,caricature and pastiche in the common language, it can be noted that all three have humorous purposes, but it can be detected a subtle difference in so far as the parody and the pastiche directly copy existing works, whereas caricature can also make only an exaggerated emphasis of behaviours, physiognomic features common to all humanity, to certain categories of person or just to specific individuals without references to existing works. In fact the aim of the directive 2001/29 and the exception provided by the article 5, par. 3, lett. K is to make a balancing between on the one hand the interest and the rights of the original work’s author, and on the other hand, freedom of expression of the parody’s author, who invokes the exception. But in our opinion, the directive could be integrated adding to the balancing of rights the protection of the right to personal identity of who is represented in a parody or in a caricature, right which is to see himself represented as it really is (art.2 of Italian Constitution). Consequently it reaches a balance between the rights of people object of caricature and the right of expression of caricature’s author. 
In conclusion we believe that only one directive is sufficient for all three “genres” but it would be better to add a focus on the protection of the rights to personal identity.

3) In the judgement of 3 september 2014 of the CJEU in Deckmyn, the Court established that the notion of parody is an autonomous concept of EU law. For the determination of the meaning, it has to be subjected to an uniform interpretation, defined by the usual meanings in the current language, that takes also into account the context and the purpose of the directive. In addition the Court established that neither by the usual meaning, nor by the article 5, it doesn’t emerge that the notion must be subjected to the conditions invoked by the national Court. Indeed the only key characteristics are the evocation of an existing work, despite presenting significant differences, and the creation of an humorous act. Studying the official documents of Exceptions to Copyright of the UK Copyright Act, we noticed that also in this one, parody, caricature and pastiche are interpreted according to the common meanings and that the same two characteristics are underlined.
Moreover both the directives state that the changes to Copyright law have no impact on the law of libel or slander; actually in the Deckmyn case, Vandersteen referred to the European Court of Justice so that the original work wasn’t associated with the discriminatory message created by the parody. Therefore we think that the UK Directive fits with the UE one.

4) The biggest difference, in the context of parody, between the Copyright and Trademark law is that, in the first case there is an express exception for parody (art.5, par. 3, left. K, directive 2001/29), while in the second one there isn’t an explicit exception. For this reason in the case of Copyright, the parody’s author could appeal to the exception if the parody respects the following essential characteristics: to evoke an other work but differing from it and to have an humorous purpose. Whereas, in the case of trademark infringement, it’s more complicated for trademark’s owner to make a claim because of the lack of an express exception for the purpose of caricature, parody or pastiche. Actually, in trademark law, the only way to protect the trademark from a parody is to prove that the parody create too confusion for consumers. So in the case of trademark you can only rely on article 10 (Freedom of expression) and argue that risk of confusion can be considered as a limitation of the freedom of expression (art. 10 (2)). So, in conclusion, a parody to be considered as such it must respect the same two conditions outlined by the CJEU in Deckmyn, evoke an other work and have humorous aim, but at the same time, in the field of trademark law it’s strictly necessary that the parody makes a confusion between trademarks to have a trademark infringements. 

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De Ridder Florine et Graci Sarah  
First issue: The exception does not cover the sole notion of parody. It covers three different notions, namely parody, caricature and pastiche. What differentiate these notions which all seem to refer to the same action, which is the imitation of an original work. In order to answer this question, we should first have a look at the definition of these…
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First issue:

The exception does not cover the sole notion of parody. It covers three different notions, namely parody, caricature and pastiche. What differentiate these notions which all seem to refer to the same action, which is the imitation of an original work. In order to answer this question, we should first have a look at the definition of these notions.

A parody is an imitative work created to mock the original one, its author or any other topic.

According to the Intellectual Property Office, a pastiche “is musical or other composition made up of selections from various sources or one that imitates the style of another artist or period” and a caricature “portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment”.

All three exceptions seem to be a sole imitation of the work in question. But it is necessary to distinguish pastiche from parody or caricature since their aim is different. The parody will use ironic means to mock a work. Caricature will exaggerate or oversimplify its characteristics but not especially in a satiric way. Finally, the pastiche will imitate the style of an artist, not to trivialize it but on the contrary, to celebrate the author. There is therefore a necessity to distinguish the three notions.

Indeed, if the exception only covered the notion of parody and excluded from its scope caricature and pastiche, there would be only one type of imitation protected. This would have inconsistent consequences, as for example the fact that an imitation of a work in order to celebrate it or its author would not be allowed, while a satirical one would be.

Second issue:

The CJEU clearly state that “it is not disputed that parody is an appropriate way to express an opinion” (§ 25). But the Deckmyn decision seems also to support the view that freedom of expression can justify a restrictive interpretation of what a parody is.

On one side, more flexibility is needed to interpret the parody exception. Indeed, the Court stated the two essential characteristics of parody: firstly, to evoke an existing work while being noticeably different from it, and secondly to constitute an expression of humour or mockery.

On the other side, European Court of Justice also stresses that if the interpretation of the notion of “parody” must be left to the discretion of national jurisdictions, it should nevertheless be in line with its purposes which are the harmonization of the concept of parody at a EU level, one the one hand, and the respect of fundamental principles such as freedom of expression (Art. 10 ECHR and Art. 11 EU Charter) on the other hand. This freedom of expression right is experienced through the word of parody. According to the Court, the Members States must also pay attention to the principle of proportionality. A fair balance must be made between the rights of the protected works’ authors and the freedom of expression its users.

Parody could be prohibited on the basis of freedom of expression. In the present case, the Court considered that “parody” contained a discriminatory message and thus that copyright holders « have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message » (§ 31).

In conclusion, freedom of expression can favour but also limit the speech for parody purpose, when the message of the parody might be offensive. This new development given by the Court seems to be a relevant one. When the message is particularly offensive to the copyright holder, shouldn’t the dignity of the latter be maintained, even if the price to pay is the limitation of the freedom of expression ? This is a controversial issue, but the ECJ seems to lean towards the safeguard of the copyright’s holder dignity.

Third issue:

Officials documents point out the evolution of the law in favour of a more convenient use of limited reproduction of a protected work for parody purposes without the consent of its right-holder. It underlines the notion of “fair dealing” that users of a copyrighted material must take into account when reproducing a limited amount of it. This notion is not developed in the Deckmyn case.

However, the meaning of parody is interpreted both by the Court of Justice of the European Union and by UK official documents such as referring to the everyday language.

The conditions that a work must fulfil in order to receive the qualification of “parody” slightly differ. According to the official documents point of view, the work must recall an existing copyrighted material while being distinct from it. It is not required that parody use of works mock the artistic work it is referring to. On the contrary, it can be used to convey a message on any topic.

According to the Court, in order to interpret a work as a parody, it must first “evoke an existing work while being noticeably different from it” and then it must “constitute an expression of humour or mockery”.

Fourth issue:

The parody exception is more likely to be used in reproductions of the work of the minds that are protected by copyright because it contains more artistic more artistic elements than in a single brand protected by trademark laws and which only consists on a name or a sentence used to make a company known to the public.

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Alain Strowel

Good for the first question, less developed answers for the fourth question.
Question: in order to limit parodies on the base of freedom of expression, must the parody be offensive to the author of the parodied work?

Oscar Laurent and Fayçal Benaïssa
1. The use of three types of "comments" ( caricature, parody and pastiche) can be considered as relevent as they all express a different type of work. In fact as we can see in "Guidance for creators and copyrights owner": a parody imitâtes a work for humorous or satirical effect and it also needs to be noticeably different from the…
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1. The use of three types of “comments” ( caricature, parody and pastiche) can be considered as relevent as they all express a different type of work. In fact as we can see in “Guidance for creators and copyrights owner”: a parody imitâtes a work for humorous or satirical effect and it also needs to be noticeably different from the original work; a pastiche is musical or other composition made up of sélections from various sources or one that imitates the style of another artist or period; and a caricature portrays its subjectin a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.
On the other hand, we consider that such a reference to three types of “comment” in somehow irrelevant or at least leads to a lack of effectiveness of the EU law. Considering the purpose of the EU to harmonize its law and therefore to find if a concept (such as “parody”) is an autonomous concept in EU law, the use of three different types of “comments” could make EU law lose its effectiveness. In fact in Deckmin the CJEU only considers the term “parody” as an autonomous concept of EU law and the Court does not pay attention to caricature nor to pastiche. Therefore, as those type of “comments” are somehow similar, the deckmin decision will not be applicable to them. We will have to wait for someone else to raise the same issue with caricature and with pastiche for the décisions to be effective.
2. The Deckmin decision is somewhat controversial.
On the one hand the court widenned the scope of the parody and therefore the scope of the freedom of expression guarenteed under art. 11 of the Charter of the European Union on Fundamental rights as a parody is one of the “exceptions and limitations” to article 2 and 3 of Directive 2001/29 that protect respectively “Reproduction right” and “Right of communication to the public of works and right of making available to the public other subject-matter”. The court did so by giving a new definition of the parody as an autonomous concept saying that its essential characteristics should be:”first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” (§33).
On the other hand, and in controversial way, the court compromises its previous widdening of the freedom of expression. In fact by saying that a copyrights holder is entitled to limit the diffusion of a parody that contains certain types of dicriminations, the court leaves the door open for copyrights holders to restrain the freedom of expression. This part of the decision is condemned by “European Copyright Society” opinion that states that “copyright law ought not to apply a more exacting standard than public or criminal (…) there are laws better placed to take care of discriminatory statements” (§30).
At the end of the day, as Dirk Voorhoof and Inger Hoedt-Rasmussen say it, we consider that the Court of Justice returns the “hot potatoes” to the Belgian court. This is clearly stated in the Decision :”It is for the national court to determine, in the light of all circumstances of the case in the main proceedings, whether the application of the exception of for parody, within the meaning of Article 5(3)(k) of directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirement of parody, preserves that fair balance” (§35).
We believe that the decision is to fear as it gives the possibility to the national courts of the EU member states to infringe the freedom of expression by making an unfair balance between the rights at stake.
3. It seems to us that the UK Copyrights Act’s conditions of a parody ( as mentioned in “Exceptions to copyright: Guidance for creators and copyright owner”) are compatible with the Court decision. In fact Deckmin’s condition are:”first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” and the Conditions of the UK Copyright Act are, first, the “fair dealing” with the work of the Copyright owner (the notion of “fair dealing” is broad as there is no statutory definition and is to be defined by the question: how would a fair-minded and and honest person have dealt with the work?) and second is a need for an expression of humour or mockery. Even though fair dealing and the autonomous concept of parody in Deckmin decision are different concepts, they can, to some extent be related. Autonomous concept of parody has a judicial base since the interpretation of the concept is delivered in this case while we have no statutory definition for the concept of fair dealing which is defined through the prism of the criterias that have to be encountered in order to be able to speak about « fair dealing » (Does using the work affect the market for the original work ?and Is the amount of the work taken reasonable and appropriate ?). Definitely, fair dealing fits into the parody concept as considered by the court. As a matter of fact the court, in the Deckmyn case, estimated that the essential characteristics of parody is to evoke an existing work while being noticeably different from it and to constitue an expression of humour or mockery. The characteristics are to be compared with the UK Copyrights Act’s conditions of a parody, according to it, the parody does involve an expression of humour or mockery, it does not have to comment on the original work or its author (this could refer to the so called broad definition given by the court). The Fair dealing also requires that you don’t need to ask the permission of the author, but for somedy who uses a quotation for example, he has to accompany it with a sufficient level of acknowledgment. This makes echo to what has been said before : that the essential characteristics of parody is to evoke an existing work while being noticeably different from it ( Deckmin Decision).

4. The conditions for parody to be exempted under trademark law is comparable to some extent with the requirements having been recently outlined by the CJEU in the Deckmyn case. Two legal bases are to be considered regarding parody, in fact, it constitues an exception to the sacremental rights of reproduction and communication. Article 5 (3)(k) of Directive 2001/29/EC of the European Parliament provide exceptions to reproduction righ and right of communication to the public of works and right of making available to the public other subject matter, in those exceptions is among others the use for the purpose of parody. In a quite more domestical aspect, the same flexibility is observed regarding parody in the Article 22 of the Law of 30 June 1994 on copyright and related rights. As a matter of fact the court, in the Deckmyn case, estimated that the essential characteristics of parody is to evoke an existing work while being noticeably different from it and to constitue an expression of humour or mockery.
In copyright, we do have, as seen before, exception for parody. Those exceptions are marked in national law (France, Belgium, Germany) and supranational law (article 5 of the directive). On the contrary on the trademark field, no exception is allowed for parody. However, we can insist the fact that criterion of confusion if correctly constructed (interpreted) will enable to put forward parody. In the case of trademark, we have to rely on Art. 10 (2) of ECHR, because no exception is legally provided.
Irrespectively to trademark or copyrights, we have to opere a balance on parody.
Proportionnality is to be needed, Reproduction is necessary but in a reasonable measure. Resemblance is admissible but not to the point of confusion. It should have a critical aspect but no dirimant of diffamatory.
As a conclusion, we could say that parody has to be religiously and repeatedly lauded since it demonstrates liberal and democratic values of the utmost importance.

Oscar Laurent and Benaïssa Fayçal

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Jan Jirásek; Nóra Finszter
Answer to the first question: All of them – parody, pastiche and caricature have something in common. They express a new view on particular situations, issues and symbols. All of them refer to something, which has already been existing and also they create an original view because they were created by another person who has its own opinion. They can generate…
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Answer to the first question:
All of them – parody, pastiche and caricature have something in common. They express a new view on particular situations, issues and symbols. All of them refer to something, which has already been existing and also they create an original view because they were created by another person who has its own opinion. They can generate debate of public interest – they have a message which should be delivered to the public. And because of this, all of the three should be included in the exception. We have also made a research and found out, that they are not the same. Parody should criticize, pastiche should just show but not criticize and caricature shows some particular person in other view – a person is represented in authors eyes.
All of them should then be distinguished and subsumed into the exception.

Answer to the second question:

– Jan: The freedom of expression relating to the content of a parody – as we know, the freedom of expression may be limited – that is because there exists directives such as 2000/43/EC of 29 June 2000 – we can not make a parody which is discriminatory or, I would like to use a example, in London, the Hyde Park is entitled to listen to free speeches however, there is one limitation – you cannot criticize the Queen. In my country (Czech Republic), if hardly offend my president in a public in front of him, they may accuse me of rowdysism. Or if I say untrue about him and place a poster on a wall with that lie, thay may accuse me as well. However, that is in fact the limitation of my expression. In case of parody, it is a part of freedom of expression – in other words it has the same limitations as the freedom of expression.
I think that it is a development rather to fear than to applaud.

– Nóra: If parody classifies as „an appropriate way to express an opinion” (Deckmyn case, para 27.), then it is protected by freedom of expression, but this also means, that the limits of freedom of expression itself also apply for parodies, the latter have the same limits as free speech. According to the ECHR, freedom of expression can be limited „in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Art. 10, para2. of the ECHR). Consequently, there are some limits to parody, but since freedom of expression is wide and can be restricted only in very justified cases (“necessary in a democratic society”), parody-creators do not have to be scared. Therefore it is a development to applaud, since it will prevent the creators from making eg. discriminatory parodies.

Answer to the third question:

– Jan: In Deckmyn case, paragraph 30: “If that is indeed the case, which is for the national court to assess, attention should be drawn to the principle of non-discrimination base on race, colour and ethnic origin“ – “Council Directive 2000/43/EC of 29 June 2000)“. Paragraph 31 which says “In those circumstances, holders of right provided for in Articles 2 and 3 of Directive 2001/29, such as Vandersteen and Others, have, in principle, a legitimate interest in ensuring thhat the work protected by copyright is not associated with such a message.“ – according to the Exception of copyright: Guidance for creators and copyright owners – they assess a question “What if someone uses my work for something derogatory or distasteful?“. They basically say that the rightsholders are and will be able to take legal actions to prevent such use.

– Nóra: Yes, the two fit each other, they are actually the same (while the CJEU stated that „ the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” (para 33. of the Decknym case), the Guidance for creators and copyright owners defines parody as the following: „parody imitates a work for humorous or satirical effect. It evokes an existing work while being noticeably different from it” (page 7 of the Guidedance)). Moreover, as well as the EU law, the UK law also mentions the case of derogatory re-use, and they both emphasize the copyright-holders’ right to take legal actions in a case of such use. However, the Guidance defines pastiche and caricature also. Finally, the UK law could not contradict the EU law because of the supremacy of the latter.

Answer to the fourth question:
According to the Council Regulation 27/2009 on Community trade mark, the trade marks must differ from each other (Art 7. (b)), they cannot be “contrary public policy or accepted principles of public morality” (Art. 7. (f)), and they cannot even resemble of an earlier trademark (Art. 8.). However, according to the reasoning of the CJEU in the Deckmyn case, parody has to “evoke an existing work, while being noticeably different from it” (para33. of the Decknym case), which raises and interesting question, how it could be done in compliance with the Regulation.

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Sosthène MOVA Kawen
1st issue : Since in the law, you have different rights, procedures for nearly every word, it is necessary to adopt a piece of legislation that would protect parody, pastiche, caricature and the like. And because there slightly different, to be on the safe side, it would be better to protect them all. For example, “pastische” has three different meanings,…
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1st issue : Since in the law, you have different rights, procedures for nearly every word, it is necessary to adopt a piece of legislation that would protect parody, pastiche, caricature and the like. And because there slightly different, to be on the safe side, it would be better to protect them all. For example, “pastische” has three different meanings, the first one can be understood as parody but the other two meanings refer to separate notions. From the Miriam Webster online dictionary:1) a literary, artistic, musical, or architectural work that imitates the style of previous work; also : such stylistic imitation ; 2 a) a musical, literary, or artistic composition made up of selections from different works; b) hodgepodge or a mixture of things

2nd issue: There is a balance of interests between the freedoms of expression of two different people to take into account. As the Court made it clear : “as stated in recital 31 in the preamble to Directive 2001/29, the exceptions to the rights set out in Articles 2 and 3 of that directive, which are provided for under Article 5 thereof, seek to achieve a ‘fair balance’ between, in particular, the rights and interests of authors on the one hand, and the rights of users of protected subject-matter on the other (see, to that effect, judgments in Padawan, EU:C:2010:620, paragraph 43, and Painer, C 145/10, EU:C:2011:798, paragraph 132).”

3rd issue: The definition given in the official documents (p.8) does square with the definition of parody given by the CJEU. The change in UK’s legislation guarantees the use of copyright works, namely “fair dealing”. Outside of “fair dealing”, a license or permission would be required. So, there is a limitation to the use of protected works under IP law. As long as there are “fair dealings” (somewhat resembles the notion of “fair use” in the U.S.), there is no infringement of IP law.

4th issue: To avoid an infrigment of trade mark (law), the work has to be different, distinct. If the work in question is leads to confusion, it will be not be considered an exception to trade mark law. The problem with parody is that there are strong similarities with (very) distinctions. But as the CJEU concluded: “Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions 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.” (my emphasis).

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Romain Meys and Audrey Poelmans
Before giving the answers to the questions asked, a short summary of the case Deckmyn v. Vandersteen should be reminded. This case deals with the concept of parody in the copyright context. Concerning the facts, Mr Deckmyn, reproduced the drawings of the author of Bob and Bobette on the cover page of a small calendar. To express the anti-immigrant…
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Before giving the answers to the questions asked, a short summary of the case Deckmyn v. Vandersteen should be reminded. This case deals with the concept of parody in the copyright context. Concerning the facts, Mr Deckmyn, reproduced the drawings of the author of Bob and Bobette on the cover page of a small calendar. To express the anti-immigrant views of his party, he replaced the original character, a man throwing coins, by the Mayor of the city of Ghent, and the people catching it, by people of color and people wearing veils. He claimed that his right to do so was protected by the parody exception provided in the EU Directive as transposed in Article 22(1)(6) of the Belgian copyright law, while the author of the original comics, claimed as a plaintiff that the criteria for parody were not fulfilled : no critical purpose, no originality, no humor, no attempt to ridicule the original work. The Brussel’s Court of Appeal asked for a preliminary ruling in front of the ECJ, who answered that, first, the concept of parody was indeed an autonomous concept of EU Law and that, second, the criteria required for its application are that (1) the work must evoke an existing work while being noticeably different from it and (2) constitute an expression of humor or mockery (which will be appreciated by the national judge).

First of all, based on these informations, it appears that parody should be considered as an all-encompassing concept rather than one of the three categories identified in the directive (the other two being pastiche and caricature). Furthermore, the Court doesn’t seem to make a difference, anyway.

Second, it is normal to have, on one side, the possibility to limit the exception of parody and, on the other side, the possibility to protect it : it is an example of how the liberty of expression works – everyone has a right to freedom of expression as long as such a right is not outweighed by the other rights at stake in a particular where a balance between them is required.

Third, the UK Copyright Act provides something a little different from the provision of EU Law, which is that the exception for parody can only be relied only to the extent that it implies a “fair dealing”. Despite the existence of that additional condition, there is no contradiction with the EU Law exception for parody, since the Court itself allows, on the basis of the freedom of expression and the balance of multiple rights, that the exception for parody may not be applied in certain cases. Under this view, it seems that the UK condition is only a precision of what the Court said.

Fourth, the conditions for a parody to be exempted under trademark law are slightly different from copyright law : no exception is allowed, unless the criteria of confusion is fulfilled. Indeed, parody will be forbidden only to the extent that there is a risk that there might be a confusion between the original work and the work based on it. Compared to the conditions identified by the Court in the field of copyright, there is no need for the expression of humor or mockery, only that the work be different enough from the original work so as to prevent any confusion between them.

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annabel bassil and victoria heinen
First issue : The answer to such an issue cannot be totally one sided. Indeed, answering in such a manner would consequently diminish the purpose of this issue. Thus, we strongly believe that it should be tackled according to two different perspectives. First, we can assume that parody is totally different by its nature from caricature and pastiche: It…
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First issue :
The answer to such an issue cannot be totally one sided. Indeed, answering in such a manner would consequently diminish the purpose of this issue. Thus, we strongly believe that it should be tackled according to two different perspectives. First, we can assume that parody is totally different by its nature from caricature and pastiche: It possibly encompasses clear textual forms of expressions. Caricature and pastiche however are more likely to be unwritten forms of expression. With regard to those assertions, we can infer that caricature and pastiche are more likely subject to the interpretation of the recipients, because their subjective appreciation of the piece of work is required in a deeper manner. Therefore, under this perspective, caricature and pastiche should be should autonomous concepts, because it should enjoy more protection than parody, since being a broader concept it is more likely to be infringed. Thus, parody should be addressed in a separate provision, while caricature and pastiche matters can be circumscribed by other provisions.
Second, the boundaries between the three types of work are very thin. So, under this point of view, we can assume that parody enshrines caricature and pastiche, and it seems to be the case in Deckmyn, and hence do not need to be addressed in different provisions, because doing so would be equivalent to regulating one same object three different times, which is inefficient, and therefore contrary to the spirit of the efficiency of the law principle.

Second issue:
This question implies that several elements of the right to freedom of expression should be thought.
On the one hand, more flexibility is needed in interpreting this freedom in order to ensure the broad scope it pursues, namely, the right for individuals to express their ideas freely. On the other hand, and this is where the second element of the freedom of expression intervenes, a restrictive interpretation is needed in order not to step on other freedoms of individuals. This is especially the case when racist parodies are created. In Deckmyn, the freedom of expression of the author stopped where the freedoms of others started i.e. The freedom to express religious beliefs, through veil wearing for example, and to practice freely their religion.
Hence, parody can be broadly interpreted, and is then to be warmly welcomed, as long as the balance is constantly struck between the author’s right to express and create ideas, and the one of the target at issue in the parody, and more generally, all other forms of fundamental freedoms that it has.

Third issue :
Thank you sir for this helpful guide !
We personally think that the criteria set in the British act definitely fits with the definition of parody laid down by the court. Let’s take that assertion further:
The first criteria laid outlined in the court’s judgment is a partial copy of the original work. The second element is that the “humor” reflected by the parody concept. Well, with regard to page 7 and 8 of the guide, we can see that both elements are taken into account by the additional UK parody exception. Finally, the concept of fair dealing explained at page 10 is very interesting since it rises reminiscences of the ECtHR’s fair balance criteria. We conclude that both are close concepts. However, in our opinion, the British concept is more appealing because it also covers economic loss, regardless of the status of a person, it can be a moral person as well as a legal one.

Fourth issue :
Trademark and copyright are different both in substance and in essence. Indeed, copyright generally amounts to a legal person, while trademark indirectly amount to a moral person, through the product it protects. By way of example, the French translation of copyright is clear on that distinction ; the droit d’auteur clearly expresses that idea, since it mentions the author of a piece of work.
Hence, a priori, trademark will never hurt the integrity of a person. It can, of course, reach the firm producing the protected item, but it will never attain the integrity of its members. This makes us think that the exception can be freely applied, especially since legal protection already exist for such cases, like libel and slander, and those protections can be considered enough since a moral person is targeted, and not a legal person.
However, trademark is in fact very closer to copyright than we might think, because an economic criteria is at stake, i.e. competition, with such a protection. Therefore, the impact related to a trademark parody, which is the fact to ridicule the protected item, can be as great as the one of a copyright parody. By way of example, he concept of « nom de domaines » encompassed by the loi du 26 juillet 2003 relative à l’enregistrement des noms de domaines protects from abuses in registering such « domain names », in its fourth article. Well, if the legislator has intended to protect a trademark from such uses, isn’t it because he was aware of the impact of a competitor’s harming behavior on a firm? This behavior in our case, can be parody. Therefore, because of the antitrust concept, even if trademark does not amount to a physical individual, even if we are at two different scales because of the nature of the protection, parody in the field of trademark can harm as much as copyright parody which means that the European court’s exception shouldn’t be applied or should be applied with utmost diligence.
Victoria Heinen and Annabel Bassil.

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Christopher Van Loo, Martin De Greef
First issue: To answer this question I believe we should refer to the definition and meanings of the notions in usual/day to day language. They might be different in their substances but at their core, they all relate to a form of satire and copy of an original piece of work or style. I thus believe the 3 concepts are good…
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First issue:
To answer this question I believe we should refer to the definition and meanings of the notions in usual/day to day language. They might be different in their substances but at their core, they all relate to a form of satire and copy of an original piece of work or style. I thus believe the 3 concepts are good together in the same provision.

Second issue:
I don’t consider it as something that should be applauded or feared. National courts must apply strict scrutiny when they determine to whom the freedom of expression will play in favor of. For instance, the parody of the Suske en Wiske cover is related to discriminatory and pejorative humor, which might alter the real author’s notoriety.
On one side, the freedom of expression protects the author of an original work, itself protected by copyright laws. A restrictive interpretation of parody should thus be given in order to guarantee efficient protection and ensure the message of the original work is being carried on.
On the other side, freedom of expression protects authors of caricature, pastiche and parodies. A more extensive mindset should be adopted when determining if such or such work enters one of those 3 categories.
At the end of the day, it might lead to an unsecure feeling of legal security since plaintiffs have no way of knowing whether the freedom of expression will play in their favor or not.

Third issue:
In the Deckmyn case, 2 conditions are being underlined in order to apply the parody exception:
1. It must evoke an original piece of work while being noticeably different.
2. It must contain a form of mockery or humor.
In the UK’s document, the exception for parody, pastiche and caricature is allowed to such extent that it is a fair dealing. Fair dealing is a non quantitative notion which allows you to make use of an original piece of work protected under copyright as long as it is on a moderated and limited way. Copying and parodying an entire work wouldn’t be acceptable.
The UK document also mentions the 2 EU law conditions that should be applied to any parody. My answer is yes, the UK document fits with the parody concept defined in Deckmyn. However, it also introduces the notion of fair dealing, which is absent from the Deckmyn decision. As a consequence, the parody might find broader protection in EU law than in the UK.

Fourth issue:
With the copyright protections, we have the parody exception (art. 5,3k of the directive). No such exception for trademark, we just rely on the article 10 (2) of the ECHR.
When I want to put my right to parody forward, there are 2 ways to see it:
1. Copyrights and Trademarks are exceptions to the freedom of expression (which allows parody). Consequence? Since Copyrights and trademarks are exceptions, courts will consider them with greater scrutiny, thus allowing a broader application of parody exceptions.
2. Copyrights and Trademarks are principal ant the parody is the exception, the situation is thus reversed, and parodies must be considered with greater scrutiny, narrower application of parody exceptions.

My answer would thus be negative. For trademark, we see an application of article 10(2) of ECHR, which grants the freedom of expression with legal exceptions mentioned in the article, the parody exception will thus be applicable at all times unless we fall in those exceptions.

But using a parody exception under copyright requires to respect a few conditions mentioned in the Deckmyn case and the EU law directive.

The conditions to use a parody exception under trademark and copyright law don’t fit together.

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Mathilde Bonus; Lea Trefon; Matthias Petel
The parody exception in copyright and trademark law : Freedom of expression is a right so fundamental in a democratic society that it needs to be protected as widely as possible. And it seems clear that having a law provision referring to parody, caricature and pastiche is more protective than an exclusive reference to parody. Seeing that all those three…
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The parody exception in copyright and trademark law :

Freedom of expression is a right so fundamental in a democratic society that it needs to be protected as widely as possible. And it seems clear that having a law provision referring to parody, caricature and pastiche is more protective than an exclusive reference to parody. Seeing that all those three notions have different meaning and therefore different scope, it covers more situations. Indeed, parody “imitates a work for humorous or satirical effect” while pastiche refers to a “musical or other composition made up of selections from various sources or one that imitates the style of another artist or period”. And finally a caricature “portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment”. It is obvious that a broader protection is hence granted than if parody was solely applied.

Copyright holders can justify an interference with the right to freedom of expression because they do not want their work to be associated with an alleged discriminatory or libelous message. We can therefore see that freedom of expression while justifying the parody exception since parodies are a legitimate way to express opinions; it is also the reason why this exception is not absolute and may be limited. It is to the national courts and the European court to determine in concrete cases to what extend freedom of expression favors or limits the use of parodies.

The two criteria given by the Court are that the parody has “to evoke an existing work while being noticeably different from it” and “to constitute an expression of humor or mockery”.
The use of parody in the UK is more restrictive because it adds the concept of “fair dealing” which implies that the use of the original work should not impact negatively the owner and cause a loss of revenue. Moreover, the amount of the work taken has to be reasonable and appropriate to what is necessary to express the opinion. The UK copyright Act’s aim is to protect the author of the original work.

Even if there is no explicit exception for parody in the trademark directive, there has been an evolution in Belgium and the Netherlands to permit the use of trademark for parody use. Trademark law does not define the absolute criteria but the courts have already put forward criteria such as the existence of confusion for the public, exclusive polemic/ humoristic use of the trademark, a use of the trademark in or outside the course of trade and any damages that might be caused to the trademark holder.

It is therefore very different from copyright law in which there is an explicit reference to a parody exception. It is easier to claim for the protection of freedom of expression in copyright since there is an express parody exception. Freedom of expression will more often prevail in copyright than in trademark cases.

This distinction between those two legal domains concerning the parody exception and its application may be questioned. Although trademark law and copyright law serve different purposes, the question may be raised whether a different approach for parody is objectively justified. Would it be problematic and lead to dissatisfying results to include a similar exception for parody in trademark law and/or to allow a court to apply n a trademark case the same conditions for parody as developed in the Deckmyn case? It cannot be denied that these clear conditions will in any event improve the legal certainty in cases concerning parody. This opinion is developed by Raf Schoefs and Alexis Fierens in “CJEU clarifies scope of exception for parody: not just joking around” and it seems to us that indeed, applying the same conditions for the parody exception for both areas, copyright and trademark, would lead to an improvement of the freedom of expression’s protection and to a more certain and clear case law in those issues.

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Gilles Hachez  
First of all, pastiche is defined by the Merriam-Webster dictionary as: “1. A literary, artistic, musical, or architectural work that imitates the style of previous work; also : such stylistic imitation 2. A musical, literary, or artistic composition made up of selections from different works” Caricature is defined as: “1. Exaggeration by means of often ludicrous distortion of parts or characteristics 2.…
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First of all, pastiche is defined by the Merriam-Webster dictionary as:
“1. A literary, artistic, musical, or architectural work that imitates the style of previous work; also : such stylistic imitation
2. A musical, literary, or artistic composition made up of selections from different works”
Caricature is defined as:
“1. Exaggeration by means of often ludicrous distortion of parts or characteristics
2. A representation especially in literature or art that has the qualities of caricature
3. A distortion so gross as to seem like caricature”
And parody is defined as:
“1. A literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
2. A feeble or ridiculous imitation”
If we look at those definitions, it appears they are quite similar, but each term still has a distinct meaning. However, the “common denominator” seems to be parody: while both pastiche and parody are imitations, pastiche doesn’t seem to have the humorous element that parody has. On the other hand, caricature and parody both have this humorous trait, but parody seems a more general concept. Therefore, while an argument in favor of referring to all three terms when talking about this exception to copyright could be supported, it seems acceptable to me that, out of practical considerations, this exception is being referred to as “the parody exception”. In the Deckmyn case, the court underlines that the parody exception is justified by the right to freedom of expression. Therefore, this exception, according to the court, there are no restrictive conditions for a work to be considered a parody. This allows for a broad definition of the word “parody”, which could include pastiches and caricatures. In any case, the rationale behind those three very similar exceptions being the same, it seems to me it doesn’t matter all that much if we refer to only one of them (especially the largest and most known concept of the three).

Secondly, the reasoning of the court, while logical, could prove quite dangerous. Indeed, the court’s reasoning is the following: In theory, because of copyright law, it is illegal to copy a copyright protected work. However, the article 5, §3, k) of Directive 2001/29 provides an exception to copyright law when the purpose of the copy is caricature, parody or pastiche. According to the court, the rationale behind this exception is that those kinds of works are the expression of the right to freedom of speech. Indeed, not providing such an exception for those kinds of works would mean an automatic censuring of all those works, thereby substantially limiting the right to freedom of expression. According to the court, national courts should thus proceed with a balance of interest between copyright and the right to freedom of expression in such cases. Essentially, national courts must ask themselves if a certain parody is a legitimate use of the right to freedom of expression, and if this is the case, if it is more important to protect the interest of the creator of the parody or to protect the interest of the author of the copyright protected work. As the right to freedom of speech is not an absolute right, it can be limited and some types of “speeches” are not protected (for example hate speech). Thus, if we follow the court’s reasoning, if a parody is a type of speech not protected by the right to freedom of speech, it would not benefit from the parody exception (for example if a parody is actually hate speech, it would not be protected by the right to freedom of expression and would thus, according to the court, not fall within the parody exception, even if sensu stricto it is a parody). In a similar way, if we push the court’s reasoning a little further, a copy of a copyright protected work which is sensu stricto not a parody, but which does constitute a legitimate use of the right to freedom of expression could still benefit from the parody exception (because the court gives the concept of parody a broad meaning). Thus, according to the court, freedom of expression can both favor and limit speech for parody purpose. This could prove to be quite dangerous, as it gives national courts the power to determine not only what parody is, but also what a “legitimate parody” is, without any criteria or guidelines. In practice, judges would thus be allowed to censure parodies thanks to copyright law. This is quite preoccupying. In my respectful opinion, it would have been better to determine some criteria for the parody exception to apply (just like there are criteria for determining if a measure is proportionate under the ECHR).

Concerning the third issue, the UK Copyright Act adopts the same purposive approach as the CJEU but adds a criterion: the “fair dealing” criterion: a parody can copy a protected work, as long as the use is considered reasonable and fair. There is however, no reference to freedom of speech or any other fundamental right. Also the UK Copyright Act seems to adopt a more restrictive concept of parody, caricature and pastiche. In that respect, this Act substantially differs from the Deckmyn case, which could be a problem later on.

Regarding the fourth issue, it must be noted that an essential condition of Trademark is distinctiveness. This makes it difficult for parodies to be allowed under Trademark law: one of the essential purposes of trademark protection is to guarantee the authenticity and origin of the protected work. Thus, a sign must be distinctive to be trademark protected: if there’s any confusion possible, trademark law does not apply. One could consider parodies are confusing and thus it would be counterintuitive to allow exceptions to trademark law for something which adds confusion, the main thing trademark law is combatting.
However, one could argue that if it is clear enough that it is a parody, if there is only likelihood of association and not likelihood of confusion, such an exception could be acceptable. One could indeed argue that parody should be possible, if there’s enough contrast between the parody and the original. The difficulty however is to determine when there’s such a contrast and when there’s intent to parody (and not only to copy).
As such, the criteria advanced by the Advocate General in the Deckmyn case (“to evoke an existing work while being noticeably different from it and to constitute an expression of humor or mockery”) could be used to determine whether a parody benefits from a parody exception to Trademark law or not. While the court claims these are criteria contained within the “everyday language” meaning of a parody under copyright law, I would argue that an explicit reference to the “noticeably different” criterion is required under trademark law. Indeed, it seems to me that, because of the specific nature, purpose and effect of trademark law (and its difference in scope, namely the duration of protection) the use of a “noticeably different” criterion to determine if something qualifies as a parody under trademark law would be justified.
Gilles Hachez & Mathieu Gombault

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Sisca BAAH
In a recent case of September 3, 2014 the CJEU had to answer a preliminary request on the issue of parody. The case concerned Mr Deckmyn who is a member of the Vlaams Belang political party and the members of the Vandersteen’s family, who were heirs of Mr Vandersteen, author of the Suske en Wiske comic books. Mr Deckmyn in…
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In a recent case of September 3, 2014 the CJEU had to answer a preliminary request on the issue of parody.

The case concerned Mr Deckmyn who is a member of the Vlaams Belang political party and the members of the Vandersteen’s family, who were heirs of Mr Vandersteen, author of the Suske en Wiske comic books. Mr Deckmyn in January 2011, used the author’s creation, the drawing entitled ‘The Compulsive Benefactor’ of Suske en Wiske to create calenders that were distributed for New Year. The politician readapted the drawing by replacing the main character “by the Mayor of the City of Ghent and the people trying to grab the coins were replaced by people wearing veils and by people of color”. This was a clear politican statement of Vlaams Belang’s position on immigration.

The heirs of Mr Vandersteen were unhappy with this so sued Mr Deckmyn for infringement of copyright. The politician defended his case by referring to the parody exception as stated in Article 22(1)(6) of the Belgian copyright law after it was transposed from a EU Directive.
Among the questions that the CJEU had to deal with were the following:

– Firstly, is parody an autonomous concept? The Court said it yes. This means that the European Court of Justice has developed its own definition of parody which differs from the different definitions of parody in the various MS. The reason it recognized this autonomous concept was to facilitate harmonization of EU law on this issue.

– Secondly, on which criterion could the distinction between parody and a mere adaptation of a work be made? Which is essential to determine whether Mr Deckmyn’s version of Suske and Wiske was protected by the parody exception or not? Here, the court was reluctant to do so itself so it stated that it was left to the appreciation of national judges based on the “everyday language” of the term parody. The national judges however need to take 2 characteristics (which were proposed by the Advocate General). The first, it must evoke the original work but at same time, be different. It needs to have some kind of originality. The second aspect, is the fact that it should express humour or mockery.
Here we will delve into four issues concerning the case.
The first is whether it’s appropriate to use the term parody to cover 3 different concepts: parody as well as caricature and pastiche. Since all three concepts require the use (or borrowing) of an initial/original creation, it understandable that they are all addressed in the same source of law. I personally find that parody and caricature could be dealt with in the same manner as they both are inspired by an existing work and have similar aims, whether it is to mock, to make fun or criticize. But as for pastiche, it is more complicated to accept it under the same exception because it could be a mere combination of several copyrights infringements without any other specific aim.
Secondly, freedom of expression can enhance but at the same time limit the use of parody. The CJE stated that it was important to weight the balance between the different interests at stake in other to determine which would prevail.

Thirdly, the UK’s exception for parody seems to be more restrictive than criterion adopted in the Deckmyn’s case. Because the copyright holder can still act against it “If a use amounts to derogatory treatment, rightsholders will still be able to take legal action to prevent that use.”
Fourtly, the conditions for a parody to be exempted under trademark law (under the EU law) do not always fit with the requirements recently outlined by the CJEU in Deckmyn. This is mainly because of the different natures of both Intellectual property rights (for instance their different time scope). While both need to be balanced with the freedom of expression, because of the difference in the nature of both IPR’s the scrutiny that will be done by the courts will be different.

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Adrien Willocx
1) Yes, it is normal that the exceptions are related to the three concepts of "parody, caricature and pastiche", because the 3 concepts are closely related to one objective: humor. Each one of them is created in a way to create some sort of mockery about a person, a place, an organisation, etc. A parody is very similar to a…
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1) Yes, it is normal that the exceptions are related to the three concepts of “parody, caricature and pastiche”, because the 3 concepts are closely related to one objective: humor. Each one of them is created in a way to create some sort of mockery about a person, a place, an organisation, etc. A parody is very similar to a caricature and pastiche. The only differences are that the second one has always a single person as a target, and the third one can apply to an infinite quantity of different subjects or matters.
2) The CJEU adopts a view that might appear contradictory concerning freedom of expression (art. Art. 10 ECHR and Art. 11 EU Charter). On the one side, the Court says that the interpretation of the exceptions concerning parody must be more flexible than in Belgium, but, on the other side, it says that, sometimes, parody can be prohibited and thus, not be protected by freedom of expression. But the main reason explaining all this is that the Court also considers the importance of discriminatory content in the drawing at issue. Parody cannot be protected if it is used in a way that is contrary to human rights, such as non-discrimination (which, indeed, prohibits racist contents in any form whatsoever). So, I would say yes, this way of reasoning means that freedom of expression can favor, but also limit the speech for parody purpose.
3) The changes to copyright law that are contained in the UK Copyright Act of 2014 does have a few similarities with the criteria contained in Deckmyn. Both require that the parody needs to “evoke an existing work while being noticeably different from it”, and that it has to express some ‘humour, mockery” or has to constitute an expression of a “satirical effect”. However, the UK Act of 2014 introduces a new possibility for someone who wants to create a parody: the concept of “fair dealing”, which entitles people to use limited/small amounts of another’s material without the owner’s permission. This concept of “fair dealing” insists on the fact that only a “limited or moderate” amount of someone else’s work is allowed. If the user wants to use a really big amount of an owner’s work, he has to ask authorities to deliver a licence or permission to him. Moreover, the new exception contained in the 2014’s act require an express consent of the owner of the work if the person who want to make a parody wants to copy it in its entirety. This implies a need for references to the author(s) of the original work! Finally, another novelty of the 2014’s Act is that the parody is not obliged to comment on the original work or its author, it is free to comment on any theme or target.
4) We saw that trademarks do need a certain degree of distinctiveness to become a trademark that is protected by the law. One thing that is important to examine is the “similarity” between the logos of trademarks, and the effect of the resemblance on consumers. This is very close to the situation that is presented to the CJEU in the Deckmyn case. The original drawing on the cover of the Suske and Wiske comic book is quite resemblant to the drawing at issue, where the principal character is replaced by the Mayor of the City of Ghent. The European court, and, especially, the belgian court of first instance has to examine the degree of similarity between both drawings. The ECJ takes the view of the Advocate General in his Opininion (§ 48), saying that the essential charcateristics of parody are, inter alia, “to evoke an existing work while being noticeably different from it”.
Another thing that seems important to notice is that, in trademark law, there is a special absolute ground for refusing to register a TM: when it is contrary to public policy or to accepted principles of morality (see art. 6ter of the Paris Convention). Well, this is quite similar to what happened in the Deckmyn case: the parody of Mr Deckmyn, member of the Vlaams Belang party, used the work of Vandersteen to make his own work with a pro-racist content. Thus, his work is openly recognized as contrary to the fundamental human rights of non discrimination, which are closely related to the principles of public policy and morality. Obviously, the ECJ takes into account this dimension of discrimination in the work of Mr Deckmyn in § 30 of the case : “(…) attention should be drawn to the principle of non-discrimination based on reace, colour and ethnic origin, as was specifically defined in Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin”.

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Henet Sacha  
After the reading of the Dekmyn’s decision, it is clear that the parody exception (along with some other exceptions) is covered and protected by the right to freedom of expression. Which are the consequences of such statement? It justifies the liberal, broad interpretation of what can be considered as a parody. The judgment does indeed extend the application of the…
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After the reading of the Dekmyn’s decision, it is clear that the parody exception (along with some other exceptions) is covered and protected by the right to freedom of expression. Which are the consequences of such statement? It justifies the liberal, broad interpretation of what can be considered as a parody. The judgment does indeed extend the application of the parody exception whereas in some EU member states, especially in Belgium, the parody concept was given a much narrower interpretation. This choice for a much more flexible view is seen as more compatible with the need to secure a fair balance between competing fundamental rights within copyright law, in this case the freedom of expression of the user of a protected work and the rights and interests of authors. It is true that a systematic narrow interpretation of copyright limitations must be rejected in this context. Therefore the so-called “strong grounding in freedom of expression” (see the opinion of the European Copyright Society of the guidance judgment) does give a certain weigh to the parody exception and enables its effectiveness.

However, the freedom of expression is not absolute, article 10 (2) makes it clear that it may be subject to conditions and restrictions … as are necessary in a democratic society … for the protection of the reputation or rights of others… Thus, we can say that the exception is well served by the protection of the freedom of expression because it enlarges its scope of application but at the same time we have to keep in mind that such freedom is not sheltered from any restrictions or conditions.

In our opinion, by adopting a wide interpretation the Court ensures a strong effectiveness of the application of article 5 of Directive 2001/29 and at the same time complies with some of the purposes of the Directive: protecting the freedom of expression and securing a fair balance within copyright law. But, there is always a perverse effect in such situations, the Court’s departure from a narrow doctrine of restrictive interpretation of exception and limitation must not be seen as an unconditional licence to infringe the rights of the author of a protected work.
In that respect, it is a bit of a shame that the Court does not explain very well the criteria relevant to determine the kind of message that parody should not convey (see http://europeanlawblog.eu/?p=2539#sthash.nQqoOZ1x.dpuf). It is a bit paradoxical to strictly reject the criteria used by the Belgian court on the ground that “parody” is an autonomous concept of European law and that we need an uniform application of European law, but at the same time to return the hot potatoes to the national courts without clearly defined which are the criteria of what could be the “European parody”. What can be considered as “noticeably different” from an existing work and who can be the judge to assess the humour or mockery aspect of a work? In copyright law, it is impossible to claim for a better harmonization without providing the national judges with the best means to ensure it.

Concerning the fourth issue, we have to notice the parody is not explicitly mentioned in trademark law, we do not have any equivalent of article 5 (3) of Directive 2001/29. It is understandable, that it is could have been problamatic for judges to apply by analogy the views on parody in copyright law to trademark cases. The core element of doctrine of protecting against infringement of trademark is a concept of test of likelihood of confusion. The other way that courts applied while getting parody case was by applying the anti-dilution legislation. Here are some features of what can be considered as a parody in the field of traemark law: “It has to be “artistic” and at the same include some “critical” features. Thus, parody is at once a derivative and a creative form of expression. Its defining characteristic is that it should incorporate some recognizable features of its object while altering other features so as to “ridicule” the object and achieve a humorous or provocative effect” (see the article of Anna Balatska “Trademark parody and Freedom of expression – Shall we dance? ”). We find again the divergent and humorous criteria but the emphasize on the “artistic” characteristic is something new and interesting.

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Detaille Laurent
1st issue: According to me, having an exception covering solely parody brings more interpretation power to the judge. The problem occurring when you have an exception concerning parody as well as caricature or pastiche is that the provision will seem exhaustive. It numbers three things that are slightly different, but they still belong to one same family, which is parody (broadly…
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1st issue:

According to me, having an exception covering solely parody brings more interpretation power to the judge. The problem occurring when you have an exception concerning parody as well as caricature or pastiche is that the provision will seem exhaustive. It numbers three things that are slightly different, but they still belong to one same family, which is parody (broadly defined). Maintaining only the exception of parody would add flexibility to the exception, which would then be more in line with the fundamental right to freedom of expression.

2nd issue:

Parody undeniably favors from the right to freedom of expression. The viable existence of parody depends on that right. Though it is true that freedom of expression belongs to everyone, so would it be possible that the parody at stake infringes someone else’s freedom of expression? How should the judge rule in such a case? This situation seems highly theoretical, but is worth mentioning. It would lead to a balance of interests such as we see so often at a European level.

3rd issue:

The UK copyright Act allows one to use another person’s material as long as the amounts of material is limited which is called the obligation of “fair dealing”. Parody evokes a work while being noticeably different from it. You cannot take over the whole work itself. If someone used someone else’s work in order to deliver hate messages or defamatory speech, the right holder of the work can require the parody to be taken down. That is exactly what the CJUE did in the Deckmyn case: it basically held that when the parodied work is used in a defamatory way or in a way which is contrary to the public public order, it may be censured by the right holder of the work at stake. So there is a clear parallelism between European and English law in that matter.

4th issue:

Article 5(3)(k) of the 2001/29 Directive states that material used as parody, caricature or pastiche shall be protected. However, in the Deckmyn case, the CJUE holds that “If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message”. This sentence is somewhat mysterious. Does it grant the property right holder the right to censure someone else’s freedom of expression? I suppose it does, in a way. However, neither international nor national law tend to consider freedom of speech as an absolute right. Hate speech and discrimination cannot be encouraged in any way for example.
There is no doubt about whether Article 5(3)(k) is to be considered as an absolute right or not. It is a matter of public interest that some speeches be, if not prohibited, at least strongly discouraged. That is when the judge intervenes: in the Deckmyn case, the CJUE confirms this exception of freedom of expression when discrimination is at stake. Furthermore, in an organization like the European Union, that consists in people from different countries, different cultures, and different ethnicities, it would have been rather bold to leave a door open to discriminative speech.

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FRANCOIS Alizée BEHETS WYDEMANS Charlotte
Issue 1 : We consider that Article 5 (k) of the Directive 2001/29 could solely refer to « parody » as we think that word encompases caricature and pastiche. There are two essential features of a parody : it must inovke an exisiting work while being « noticeably different from it », and it must constitute an expression of humor or…
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Issue 1 : We consider that Article 5 (k) of the Directive 2001/29 could solely refer to « parody » as we think that word encompases caricature and pastiche.

There are two essential features of a parody : it must inovke an exisiting work while being « noticeably different from it », and it must constitute an expression of humor or mockery. The national judge is to appreciate if there is humor or mockery according to its national conception.

These two features could aslo be applied to caricature or pastiche.

Issue 2 : The freedom of expression favors and limits the parody exception.
Indeed, the freedom of expression favors the speech for parody purpose because parody is a form of expression and should therefore be protected as such. But, this protection is not unlimited. For instance, in the Deckmyn case the CJEU rules that the holder of the copyright has « a legitimate interest in ensuring that the work protected by copyright is not associated with such a [discriminatory ] message ».
Issue 3 : There is a new exception for the purpose of parody in the Copyright and Rights in Performances Regulations 2014. Section 30A, provides :
« Caricature, parody or pastiche
(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable ».
This exception is explained in the « Exception to copyright : guidance for creators and copyright owners » in the following terms : « many works of caricature, parody or pastiche – songs, films, artworks and so on – especially in this age of digital creation and re-mixing, involve some level of copying from another work.
The law is changing to allow people to use limited amounts of another’s material without the owner’s permission. For example: a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.
It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work. This legal term is further explained later in this guide ».
We think that this exception does somewhat fit the parody concept and criteria as described in the Deckmyn case. However, we would like to underline that the exception requires the user of someone else’s work to only use a limited and moderate amount (‘fair dealing’), and we think the « fair dealing » requirement is larger than the « noticeably diffrent from it » requirement.

Issue 4 : The requirements recently outlined by the CJEU in the Deckmyn case are the following :
– display an original character of its own (originality) ;
– display that character in such a manner that the parody cannot reasonably be ascribed to the author of the original work;
– seek to be humorous or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
– mention the source of the parodied work?
We have difficulties to imagine any possibilities people could parody a trademark. We are looking forward to hearing other students’ opinion on that one.

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Emmanuelle Quintart and Mathilde Dheur  
"Parody" becomes a concept of EU law: something to applaud or to fear? 1st issue: Since parody, pastiche and caricature cover three different realities, it might seem more appropriate to have a different law provision for each of them. This way, they’ll benefit of a higher protection. In fact, if we separate the three concepts and attribute different conditions to each…
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“Parody” becomes a concept of EU law: something to applaud or to fear?

1st issue: Since parody, pastiche and caricature cover three different realities, it might seem more appropriate to have a different law provision for each of them. This way, they’ll benefit of a higher protection. In fact, if we separate the three concepts and attribute different conditions to each of them, the protection is higher because the specific conditions for each have to be fulfilled in order to invoke them as an exception to copyright.

2nd issue: Here comes the question of a fair balance of the interest. In fact, on the one side, freedom of speech permits the exception of parody to copyright. The author of Vlaams Belang can express himself through a parody if it respects 2 conditions : evoke an existing work, while being different from it and constitute an expression of humour or mockery.
And on the other side, the author of Suske and Wiske can invoke his freedom of expression in order not to be copied, and to have his work respected.
The right of freedom of expression is not an absolute right. Therefore, a fair balance of the interests at stake has to be done by the national judge, taking into account all the circumstances. This way, the judge can evaluate which of those two freedoms of expressions has to prevail on the other.
In each case, one of the parties will be prejudiced.

3rd issue: No, the UK copyright act does not fit the concept of parody and criteria defined in Deckmyn because this Act doesn’t the two conditions highlighted in the Deckmyn case. In fact, the UK copyright Act only requires for the parody to use “limited amounts of another’s material”. Moreover, concerning the condition of mockery, the Act seems to imply that the parody “does not have to comment on the original work of the author. It can be used to comment on any theme or target”. Whereas the Deckmyn case seems to say that, in any case, the image of the author is harmed, even if the mockery concerns another theme or target than the author himself.

4th issue: The conditions for a parody to be exempted under trademark law (under EU law) do not exactly fit with the requirements recently outlined by the CJEU in Deckmyn. In fact, the conditions seem to be stricter under trademark law, the courts are required to proceed to a ‘likelihood of confusion” test. In trademark law, if there is just a likelihood of confusion between the trademark protected work and the parody, the parody will be set aside. The two European provisions (First Council Directive 89/104/EEC [Directive 2008/95/EC Amendments 46] in Article 5(1) (a) 47 and Trademark Regulation No. 40/94 in Article 9 (1)(a) 4) include special provisions for the “identity” case. Here the protection seems even stricter since they « afford trademark owners an absolute right to prohibit third parties from using signs that are identical on products that are exactly alike ».
We see that American law, compared to EU law, is less severe concerning trademark law and parody. They assimilate cases where identical marks are used for identical products to cases where the resemblances are just similar.

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Alain Strowel

Thanks but I do not understand what you could mean when you write: “the author of Suske and Wiske can invoke his freedom of expression in order not to be copied”.

Jean Deschuijteneer  
First issue : The Deckmyn case concerned only parody and pushed the CJEU to set criteria for a parody to exist : on the one hand, the work in question must evoke a protected work while being different enough to distinguish them and, on the other hand, it must "constitute an expression of humour or mockery". It would be fitting that the…
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First issue :
The Deckmyn case concerned only parody and pushed the CJEU to set criteria for a parody to exist : on the one hand, the work in question must evoke a protected work while being different enough to distinguish them and, on the other hand, it must “constitute an expression of humour or mockery”.
It would be fitting that the conditions set here applied to pastiche and caricatures. A pastiche is an imitation of the style or character of the work of an artist (it is often visual). Thus, the first condition (the evocation of a protected work) is fulfilled. A problem arises when we examine the presence of the second condition : even though it often conveys a sense of humour, it is not always the case. All in all, some works which could qualify as pastiches could circumvent this test.
A caricature is a visual work which exaggerates certain traits of personality or of the physical appearance of someone. While constituting some expression of mockery, it does not evoke a protected work in all cases as it can only show a certain public figure (such as a politician). Test does not cover all caricatures then.
Even though having only one provision is easier, there are some pastiches and caricatures which would pass through this test.

Second issue :
As always, competing interests, both having their good reasons, may collide. A parody could be justified by freedom of expression but could also infringe someone else’s freedom of expression. A parody could be so popular as to overshadow the original author’s (a musician’s for example) work in the end. There would be a damage to the original artist’s freedom of expression. Safeguards (criteria like those in the Deckmyn case may be enough, only time will tell) should be set up to avoid this situation.

Third issue :
The UK Copyright act recognizes different exceptions in the copyright field. The most notable one allows the consumers to reproduce, without infringing copyright and asking the author’s authorization, a CD or a book on another device. This exception applies only for private-use copies.
Parody is not a reproduction but the use of an idea, of certain traits. As it must be different while evoking the original work, there should not be any problem whatsoever in the coexistence of the Deckmyn case criteria and the UK Copyright act.

Fourth issue :
There is no express exception for parody in trademark law. The only provision we can thus rely on is Article 10 of the ECHR which is devoted to freedom of expression.
It is thus not easy because there is a necessity to make a balance of rights.
Parody, as we said before, has to be critical while having an intrinsic artistic value.

There is one simple way to make the rule set out in Deckmyn coexist with freedom of expression : the living instrument principle of the Convention.

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Alain Strowel
Thanks but it is difficult to undestand what you mean when you write: "A parody could be justified by freedom of expression but could also infringe someone else’s freedom of expression. A parody could be so popular as to overshadow the original author’s (a musician’s for example) work in the end. There would be a damage to the original artist’s…
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Thanks but it is difficult to undestand what you mean when you write: “A parody could be justified by freedom of expression but could also infringe someone else’s freedom of expression. A parody could be so popular as to overshadow the original author’s (a musician’s for example) work in the end. There would be a damage to the original artist’s freedom of expression.” What do you mean by an infringement of someone else’s freedom of expression? a damage to the original artist’s freedom of expression? A bit confusing

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Duret Eve and Van Rossum Cindy
In Deckmyn v. Vandersteen case of the ECJ (after under « Deckmyn »), the court states that the notion of parody (of art. 5(3)(k) of Directive 2001/29/EC) is an autonomous concept of EU law. And that the essential characteristics and conditions are twofold : (i) to evoke an existing work while being noticeably different from it and (ii) to constitue…
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In Deckmyn v. Vandersteen case of the ECJ (after under « Deckmyn »), the court states that the notion of parody (of art. 5(3)(k) of Directive 2001/29/EC) is an autonomous concept of EU law. And that the essential characteristics and conditions are twofold : (i) to evoke an existing work while being noticeably different from it and (ii) to constitue an expression of humour or mockery.
This art. 5(3)( k) is an exception to art. 2 and 3 of the Directive so the the Copyright owner rights.

First of all, we will talk about the three types of « genre » covered by the art. 5 (3)(k) of Directive 2001/29/EC and ; second, we will analyze the parody exception in face with the freedom of expression and see how this freedom both extend and prohibit parody. We will then see if the parody exeption of the UK Copyright Act fits with the concept and criteria defined in Deckmyn. Finally, We will discuss if the conditions for parody to be exempted under trademark law (under the EU law) fit with the requirements outlined by the CJEU in Deckmyn.

So, first of all, we think it is worth to refer to those three types of genres (parody, pastiche and caricture) because they don’t cover the same reality. As explained in the Intellectual Property Office online guide, parody imitates a work for humorous or satirical effect ; pastiche is musical compostion made up of selections from different sources to imitate the style of another artist or period and caricature portrays someone in a simplified or exaggerated way.
But on the other hand, there are arguments for having a law provision referring to a parody solely. First of all, even if we can see differences between the three oncepts, their goals is more or less the same : making fun of the original work, person or author. Second, if we have a look at the common name of the provision they talk about the « parody exception ». Third, since Deckmyn we know that we have an autonomous concept of parody in EU law but we will have to wait 2 other judgements to know if there are some autonomous of pastiche and caricature concepts in EU law.

The CJEU has clarified that the parody exception is to be applied as a very broad concept in European law in order to guarantee a fair balance between copyright enforcement and the right to freedom of expression and information but parody could be prohibited on the basis of freedom of expression.
Indeed, the court at §25 of the decision holds that « it is not disputed that parody is an appropriate way to express an opinion » thus freedom of express justify and protect the parody exception. The court chooses for a wide and flexible parody concept (see D. Voorhoof and I. Hoedt-Rasmussen, EU Court of Justice delivers preliminary ruling in Belgian Parody Case, 8 Sept. 2014 p. 3) to follows its objectives that are (i) to safeguard its purpose and ( ii) to enable the effectiveness of that opinion.
But … the court seems to support a restrictive interpretation too. How ?
The court opens the door to a « fair balance ». Even if art. 10 ECHR and art. 11 EU Charter (consacre) freedom of expression and thus justify and protect parody ; this provision can prohibit parody too. At art. 10(2) ECHR, it is written that any limitation to the right of freedom of expression can only be justified if it is « prescribed by law and necessary in a democratic society ». So there is a need of a fair balance of interest and it is a condition to the parody exception. While doing so the court might balance freedom of expression (here : discrimination) and copyright owner rights. In that case (discrimination case) the freedom of expression and the fair balance can prohibit the parody exception.
So this is something to applaude if the « fair balance » is well done. But it is up to the national courts to make the balance and we agree on the fact that it is something to fear because, as said by Voorhof and Hoedt-Rasmussen the CJEU « returns hot potatoes to national court ». The courts may use any pretext to reduce freedom of expression and thus parody wich is totally in contradiction with the first objective of the court.

The UK Copyright Act of Oct 1, 2014 also provides for an exception for the purpose of parody. We will analyse if it fits to the criteria defined in Deckmyn.
The parody exception as defined in Deckmyn must fulfilled two conditions : (i) evoke an existing work while being noticeably different and (ii) constitue an expression of humour or mockery.
In the IPO online guide, the « parody exception » only permits use for the purpose of caricature, parofdy pastiche to the extent that it is « fair dealing ». they refer to this concept that allows to make use or a limited, moderate amount of someone else’s work. There is no statutory definition of such notion but some factor scan be identified by the courts are relevent in determining wheter a particular dealing with a work is furst such as (i) whether the work affects the market for the original work or not (whether it could be use as a substitute) and (ii) whether the amount of the work taken is reasonable and appropriate (usually only part of a work may be used. At the light of the particular meaning of this notion, we can say that the first condition is fulfilled.
They also require that parody involve an expression of humour or mockery (but it does not have to comment on the original work or its author) so the second condition is fulfilled.

The fourth question requires to compare the conditions for not having an infringement under trademark law and copyright. Indeed, if the conditions for exempting an use under trademark law are different from exempting an use under copyright, there is a risk (in case of cumulation or overlap) that something prohibited under one right might be allowed under another IP right.
Regarding copyright, the parody exception is rarely laid down in national laws as in France, Belgium and in Germany. The parody exception is also guaranteed under the EU Infosoc Directive of 22 May 2001 (Art. 5 (2) (k)). The two conditions to constitute a parody in the meaning of this directive are for the reproduced piece of work :
(i) to evoke an existing work while being noticeably different from it and
(ii) to constitue an expression of humour or mockery.
As to trademark law, there is no express exception in most European laws and there is nothing when you look at national laws and CTM. Moreover, the criterion of confusion in principle allows parody, but it is more complicated to make claims based on freedom of expression in the field of trademark law than in the field of copyright, partly because there are these exception for irony for copyright while in the case of trademark you can only rely on article 10 ECHR §2.
Art 10 ECHR: “2. The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security […] for the protection of the reputation or rights of others […]”
Conditions:
(i) Prescribed by a law (trademark/copyright act)
(ii) Protection of copyright and trademark as a « right of others »
(iii) Necessity means proportionate to a legitimate goal, necessary to a democratic society to limit freedom of expression. In order to assess if it is necessary, you have to assess whether the interference is proportionate to a legitimate objective.

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Kayinga Mathilda
1. It is worth to refer to those three types of comments because even though it has the same result, being exceptions to copyright and based on freedom of expression, the three types have some differences: - Parody is more a burlesque transformation of a work (book or music for example) and is situated in a humorous…
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1. It is worth to refer to those three types of comments because even though it has the same result, being exceptions to copyright and based on freedom of expression, the three types have some differences:

– Parody is more a burlesque transformation of a work (book or music for example) and is situated in a humorous register.
– Caricature consists of deforming a work by magnifying excessively certain aspects to make them stand out, usually in a satirical intention.
– Pastiche is more flattering and sometimes gives tribute. His regime is the imitation of the original work by using characteristics that are specific or unique to the entire work of the author. It follows logic of imitation, done in a playful intent or exercise.

By saying that i think it is important for the law provision to refer to parody as well as caricature and pastiche so that every situation can be taken into account.

2. In Deckmyn case it was the first time that the CJEU examined the parody exception.

In one hand freedom of expression favors the parody exception because you should make a balance between copyright and freedom to parody (which is a form of expression) and thanks to Deckmyn case, the CJEU considers the parody as a broad and autonomous notion which is less restrictive than in the national level. It is easier to accept a parody on a work protected by copyright if the only conditions given by the court are that it evokes an existing work while exhibiting noticeable differences and that it is humorous.

In the other hand freedom of expression limits the parody exception because we should see whether or not the limits of freedom of expression were respected. In Deckmyn the CJEU excluded the application of the parody exception on the ground of non-discrimination.

This is an interesting development and we should applaud it because the parody exception only provides the copyright owner the ability to avoid plagiarism but not the ability to control the content of the parody. We have two ways to control the parody exception then, the first one based on the privilege of the copyright owner and the second one based on the ground of non-discrimination that can be initiate not only by the copyright owner but by anyone who has an interest. This gives more chance to the copyright owner to prohibit the parody.

For me i think in the national level you don’t need the ground of non-discrimination because the copyright owner can apply its moral rights (parody is authorized if it does not affect the name and reputation of the author of the original work). In Union level we can’t base on moral rights because it is not harmonized.

3. The UK Copyright Act provides for an exception for the purpose of parody and the criteria fits with the ones defines in Deckmyn. But the parody concept is different in that it refers to the notion of “fair dealing” (a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing; it will always be a matter of fact, degree and impression in each case).

4. Unlike copyright, trademark provides no legal provisions on parody exceptions. I guess it is the jurisprudence at national level that suggests some guidelines.

I think it was important to provide legal provisions on parody exceptions for copyrights and not for trademark because we are in front of two different logics. Copyright is unregulated and its first function is to reward the author for his work by giving him a privilege for a long period. Trademark is regulated at Union’s level and its first function is economical purpose and it is strongly protected for a short period.

After some research i have an example in France where judges accept parody on trademark but only when it comes from organizations and associations that have as aim the general interest. It does not have to relate to economic aspects. They give three conditions to let the associations use parodies:

– a legitimate aim of general interest.
– the aim according to the corporate purpose of the association.
– the means used are proportional to the aim.

As i see it, compares to the requirements recently outlined by the CJEU in Deckmyn, we have a mixed of the non-discrimination ground and the privilege given by the intellectual property right. In one hand the conditions given by the CJEU fit with the ones given by the French jurisdictions. But in terms of ratione personae it is restrictive because only associations with a legitimate aim can use parodies on trademarks and only the trademark owner can go in front of the court for infringement of its trademark.

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Lucie Dufays & Romane Mulatin
In its decision in “Deckmyn v. Vandersteen”, the European Court of Justice states that “parody” is an autonomous concept of EU law. It also defines the parody as made up of two main characteristics: first, it must evoke an existing work while being “noticeably different from it”; secondly, it must constitute an expression of humour or mockery. Article 5 (3)…
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In its decision in “Deckmyn v. Vandersteen”, the European Court of Justice states that “parody” is an autonomous concept of EU law. It also defines the parody as made up of two main characteristics: first, it must evoke an existing work while being “noticeably different from it”; secondly, it must constitute an expression of humour or mockery.

Article 5 (3) (k) of the 2001/29 Directive on copyright in the information society provides an exception to copyright “for the purpose or caricature, parody or pastiche”. This exception is often referred as the “parody exception”. Then, is it necessary to make a distinction between these three concepts? We believe so. Even if they share common characteristics, they refer to different realities.

Pastiche, parody and caricature all consist in the use of a protected work and in its distortion to create a new work. But, while parody and caricature use this work for humorous or satirical effects, pastiche does not. Pastiche only consist in the imitation of the style of an artist or period. We still have to state the difference between caricature and parody. The main characteristic of caricature is that it always consist in exaggeration. We reckon that gathering these three concepts under one provision referring to parody solely would be a big mistake. By doing so, many works would lose the protection of this provision because parody is not always caricature or pastiche, at least if we refer to the definition of parody given by the European Court of Justice.

The parody exception to copyright is, of course, justified by the freedom of expression. But, in this decision, the European Court of Justice also seems to state that parody could be prohibited on the basis of freedom of expression… Thus, can freedom of expression both favour but also limit speech through parody?

Parody is protected by the freedom of expression. In this purpose, the European Court of Justice defined “parody” in broad terms, allowing this concept to cover many different sorts of works. It is also the reason why the parody exception exist. But the freedom of expression itself is not absolute. Indeed, it can be restricted by other fundamental rights such as, in this case, the right to non-discrimination. By seeking the protection of the freedom of expression, you also have to deal with its limits.

In this case, the European Court of Justice provides that “holders of copyright rights have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with a discriminatory message or hate-speech”. Even more, a fair balance must be stroke between the interests of the rights owner and those of the user of the work in the purpose of parody. Some authors wrote that, by doing so, the Court restricts the scope of the parody exception on an irrelevant ground. We support this opinion. By doing so, the Court allows an exception to the parody exception. As copyright holders are not expected to authorise spontaneously the transformative use of their original work, this could open the door to many abuses, and, at the end of the day, to the breakdown of the parody exception.

Moreover, as “parody” now benefits from an autonomous definition by EU law, member states have to adapt their national legislations to community law. The UK Copyright Act states that you can use someone else’s work without his permission for the purpose of caricature, parody or pastiche, to the extent that it is “fair dealing”. Fair dealing means that you can only use the work like a fair-minded and honest person would, in a moderate amount. Therefore, the UK legislation adds a third condition, in order to benefit from the parody exception. This does not fit with the parody concept and criteria defined by the European Court of Justice in “Deckmyn”, because it is more restrictive.

To conclude, in this case, the parody exception is only dealt with in copyright law. But the question could also be raised in relation with trademark law. There is no explicit exception for parody in the Trademark Directive. So, should we apply the “Deckmyn” requirements to trademark law, even if these two intellectual property rights are different?
In the “CJEU clarifies scope of exception for parody: not just joking around” article by A. Flerens and R. Schoefs, we found some tracks to define the conditions for a parody to be exempted under trademark law.
First, the parody must be distinct from the original work, in such a way that it does not create confusion for the public. We reckon that this idea is close from the criteria set out by the European Court of Justice under which a parody must “evoke an existing work, while being noticeably different from it”.
Then, the humoristic criteria is also taken into account by trademark law. The work must constitute an expression of humour or mockery of the copyright or trademark work.
Finally, a third criteria related to exception to trademark can be found in the Benelux Convention on Intellectual Property. A trademark for parody is allowed when there is a “due cause”. We can link this criteria with the “fair dealing” concept added by the UK in its Copyright Act.

We believe that trademark should also be allowed to be parodied. This is fundamental for the right to freedom of expression (for example, you should be able to parody a company’s logo to criticize its policy). To do so, courts should be allowed to apply in a trademark case the same criteria for parody as those developed in the “Deckmyn v. Vandersteen” case.

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Couplet Elise, Dubois Livia
(1) Caricature, parody and pastiche constitute 3 exceptions to the prohibition of copying an author’s protected work. The exceptions exist in European law through article 5 of directive 2001/29, which lists the exceptions and limitations regarding protected works. The question here is whether in the case of the “parody-exception”, it is worth referring to 3 types of comments or if…
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(1) Caricature, parody and pastiche constitute 3 exceptions to the prohibition of copying an author’s protected work. The exceptions exist in European law through article 5 of directive 2001/29, which lists the exceptions and limitations regarding protected works.
The question here is whether in the case of the “parody-exception”, it is worth referring to 3 types of comments or if it would be better having a law provision referring to parody solely.
On the one hand, although the parody-exception applies to parody, as well as caricature and pastiche, it is worth noting that these comments differ from one another, as well as their objectives. A caricature is an image which represents someone’s features in an exaggerated way. It is usually aimed at mocking or criticizing and is often used today to represent politicians. Parody is an artistic, literary or musical imitative work and has a much broader scope of application than caricature. Pastiche is also an imitative work of the style of an author, but it is different from parody and caricature as it is not as focused on mockery but rather on celebrating the work of an artist. Thus it is a much more respectful imitation of a work of art. As the scopes of application of parody, caricature and pastiche differ, it may be useful having law provisions referring to each of these comments solely, as having law provisions referring to the 3 comments might be confusing regarding the differences.
On the other hand, it may sometimes be difficult to determine what exactly constitutes pastiche, caricature or parody, which would be an argument against distinct law provisions.
Although these exceptions are different, which might legitimize distinct law provisions, the two conditions required in § 33 of the decision can be applied to these three comments, which could favor a uniform law provision.

(2) Parody can be used in good faith, as a fair and reasonable imitative work, but it can also be used as a shield for ill-intentioned people, who pretend falling under the “parody-exception”, only to use the author’s work for dubious purposes. Thus parody is covered by the freedom of expression, but when going too far, it can also be prohibited on the basis of that same freedom.
Freedom of expression plays quite a role in the Deckmyn-decision. The decision states that the exceptions and limitations listed in article 5 of the 2001/29 directive must strike a fair balance between the rights of the authors (owners of a copyright) and the rights of the users. The decision of the Court can be qualified as schizophrenic. Indeed, on the one hand, parody must be restrictive enough in order to protect the author’s copyright, as freedom of expression is not absolute, but on the other hand, parody must also be flexible as to enable users of an artist’s work to express their opinion. The decision raises the problem that, in this case, the litigious parody conveys a discriminatory message which cannot be associated with the original work of the author. Thus, freedom of expression should be restricted in order to protect the author. Nevertheless, though the Court states that the exceptions and limitations must be interpreted strictly to safeguard the author’s rights, that restrictive interpretation wouldn’t be compatible with the fair-balance principle. So the Court decided that in the light of that same freedom of expression, the exceptions and limitations must not be narrowly interpreted but rather broadly, as to respect the freedom of the users to express their opinion. That should be something to applaud, for the rights of the authors and the rights of fair users should be equally protected.

(3) The UK Copyright Act fits with the two criteria listed by the Court, as it states that the parody must “constitute an expression of humor or mockery” and be different from the author’s original work, whilst still evoking it. But the Copyright Act adds an important criterion to the parody concept, namely the fair-dealing criterion, which is making use of the work of an author in a limited, moderate amount. The parody-exception is allowed as long as the use is considered reasonable and “fair”, that is as long as it doesn’t infringe copyright. Some factors are taken into account when considering “fair-dealing”, such as the consequences of the exception regarding the original work, or whether it was appropriate to use the entire work, as opposed to reproducing part of it.

(4) The conditions listed in §33 of the Deckmyn-decision only apply to copyright, and not trademark law. Does that fit with the requirement of fair-balance outlined in that same decision?
Trademark law is more used as a mean to control the quality and the origin of a product. The fact that a company would sue another for using a similar sign or name can usually be explained by the fact that that company wants to keep an eye on unfair competition, and wants to keep the exclusivity. It is all about exclusivity. Indeed, copyright is also about exclusivity, but it affects the author’s work, and what makes a product recognizable. Trademark law is not subject to these conditions because it is not feasible to apply these conditions to something else than copyright. Especially for the second condition, we don’t see how humor and mockery could be used with respect to trademarks.

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Arnaud Vangansbeek
First issue : In my opinion, the word "parody" includes caricature and pastiche. According to the Oxford dictionnary, a caricature is "an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect". The same dictionnary proposes the words pastiche and caricature as synonyms. So I do not think it was worth to add…
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First issue : In my opinion, the word “parody” includes caricature and pastiche. According to the Oxford dictionnary, a caricature is “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect”. The same dictionnary proposes the words pastiche and caricature as synonyms. So I do not think it was worth to add these two last words. However, it does not really change anything, so why bother ? The importance is put on the object. As soon as it is a parody as the Directive defines it, it falls under the parody exception regardless of the unesefull debate to know whether it is considered more like a caricature or pastiche…

Second issue : On the one hand, it is important that parodies are protected by freedom of expression. It is a fundamental right to criticize public authorities or other public figures by the use of humor and in particular, humoristic drawings. In Belgium, Kroll for example is a well-knows “caricaturer” who is present in the poltiical debates in TV programms and regurlarly gives his opinion through caricatures. On the other hand, this right should not be absolute. Other fundamental rights such as the right to privacy are in stake. It is important for judges to have the possibility to make a balance between fundamental rights to decide wheter one should prevail on the other on the basis of the principle of proportionnality.

Third issue : In a few words, without going to much into details, the UK regime seems to be far more precise than the directive. It is, as far as I am concerned, related to the Common Law approach of UK law regime. The Common law is a casuastic regime that enjoys the precision of good definitions. It does not function with asbtract law as we know it in our civil law system. The clearest illusration of this is that the UK regime defines the three ideas of pastiche, caricature and parody where as we do not have such definitions in EU law where the directive imposes an abstract idea of parody that the judges have to deal with.

Fourth issue : Article 5(3)(k) of the 2001/29 Directive on copyright in the information society provides that Member States might exempt from copyright a “use” of a protected element “for the purpose of caricature, parody or pastiche“. On the other side, the two conditions outlined by the case are the following : first it must evoke an existing work while being “noticeably different from it”; secondly, it must constitute an expression of humor or mockery. The main problem is that the directive does not say anything about humor where as the case does. It is understandable that the directive would not talk about humor since it is a subjective opinion. What is funny ? A directive should not tell us that. But can a judge decide what is funny or not ? this is in my opinion where the debate is. I would say that this decions is not a good decision since the Court falls into the deep dangers of subjectivity. This case seems to allow the Court to control a national court decision that decided if the work constituted an expression of humor. As stressed in the text before, the EU is a union of very different States regarding their historical and cultural background. Something funny in Belgium would not be in Bulgaria and vice versa… Furthemore, judges are from all the countries in EU, so how would they agree ? It would be quite a mess to assist a judge reunion where they have to argue if something is funny or not. It is not the role of the EU judges. It seems to me, regarding the words of the directive that it actually leaves a great hand, a great discretionnary room to the member states and not on the contrary to the Court. One could argue that this case does not interpret the directive as it should be. It is my opinion. The case should have left the matter to the Court of Appeal. We can see that Belgian case law is less protective for caricature since “to qualify as parody, a reuse of a protected work must fulfil a critical purpose; itself show some originality; display humorous traits; seek to ridicule the original work; and not borrow a greater number of formal elements from the original work than is strictly necessary”. With these elements taken into account the case holding could be different if we regard the EU or Belgian interpretation of parody. However, since the CJ’s interpretation prevails on Belgian judges’ one, Belgian case law should bow the head. It is quite a pity since Belgian judges know better about this issue than the EU… In Conclusion, I think that this decision was not a smart move from a EU institution point of view since it became a new argument for the growing number of euro-sceptics against the EU.

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