O Deckmyn, what's in a parody? Waiting for Advocate General's Opinion this week

Busy checking the sizes of
their 'I ♥️ CJEU' T-shirts

At last! Following a few copyright-free weeks at the Court of Justice of the European Union (CJEU), some relief is finally coming to an EU copyright enthusiast near you on Thursday, when Advocate General (AG) Cruz Villalon issues his Opinion in Case C-201/13 Deckmyn, and the CJEU hears Case C-419/13 Art&Allposters. 

The latter [here and here] is a very important [if not one of the most important recent references, so important that this Kat has already ordered her customised T-shirt 'I heart Art&Allposters’] reference for a preliminary ruling from The Netherlands, seeking clarification as to the exhaustion of the right of distribution and transformative uses under EU law. 

The former is a reference from Belgium which is also particularly timely, in that it concerns the notion of 'parody' under Article 5(3)(k) of the InfoSoc Directive. There is probably no need to recall what happened to the delay to the approval of the proposed parody, caricature and pastiche exception [here] in the UK [see however here, here and here].

The original work
in Deckmyn ...

As explained by EU Law Radar and reported by this blog, the background national proceedings in Deckmyn are all about whether the right holders to the well-known Spike and Suzy [Suske and Wiske] albums can stop a political party from circulating a picture that spoofs the cover of one of the books, while also reproducing several elements, including the title, the Spike and Suzy characters, and the use of the orange colour which was so typical for the covers to the Spike and Suzy stories. 

Article 5(3)(k) allows Member States to provide for an exception or limitation [surprisingly enough, they are not the same thing, as the CJEU explained at paras 33 to 35 of its VG Wort decision] to the rights provided for in Articles 2 [reproduction right] and 3 [right of communication/making available to the public] for the purpose of caricature, parody or pastiche.

These are the questions that the Brussels Court of Appeal referred to the CJEU:

1.    Is the concept of 'parody' an independent concept in European Union law?

2.    If so, must a parody satisfy the following conditions or conform to the following characteristics:

-    the display of an original character of its own (originality);

... and its "parody"

-    and such that the parody cannot reasonably be ascribed to the author of the original work;

-    be designed to provoke humour 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?

3.    Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

And here’s the AdvoKat General’s Opinion.

1.   An independent concept of EU law? You bet!

As regards the first question, this Kat is inclined to respond in the affirmative. This is because - as the CJEU explained on a number of occasions [as recent copyright-related examples, see eg the decisions in VG Wort , TV2 Danmark, and Padawan] - "the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States  for the purpose of determining its meaning and scope [as is the case here] must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation".

2.   What’s in a parody? A bit of originality, but other things may be specific to satire or pastiche

O! be some other parody:
What's in a parody?

By its second question, the Belgian court basically wishes to know whether a parody must be copyright-protectable per se. In fact, as the CJEU stated in Case C-393/09 BSA [here and here], "copyright within the meaning of Directive 2001/29 [ie the InfoSoc Directive] is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation". 

This Kat does not see this requirement in the Directive, yet if a parody lacked any originality, ie if it was not its author (the parodist)'s own intellectual creation, it would probably be just a verbatim reproduction of an earlier work. As such, would it qualify as a parody? Unlikely.

As to whether 'lack of confusion' is also required, this is a concept that is not really part of copyright law. However, the AG might be inclined to differentiate between 'parody' and 'pastiche', this being an artistic work in a style that imitates that of another work, artist, or period.

This said, does the parody have to target the earlier work or can it also refer to something/someone else? Also here, another distinction might come into consideration, this being the distinction between 'parody' and 'satire'. As the US Supreme Court explained in its seminal 1993 decision in Campbell, "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing". Yet, as explained in the enlightening and invariably engaging Patry on Fair Use, it is unlikely that the Court intended such a sharp distinction and that, instead, Justice Souter was just making a small, illustrative point.

If acknowledgment was a requirement,
how many would comply?

However, unlike US fair use doctrine, the InfoSoc Directive makes an express distinction between parody and satire. Whether such a distinction is or ought be meaningful is another matter, of course ...

Finally: must the parody mention the source of the original work? Well, not even the UK would require that :-)

And, indeed, in Article 5(3)(k) - unlike say Article 3(a) - there is no mention of any duty to acknowledge the author of the original work. So this Kat would respond in the negative here.

3.   Any other requirements? Being funny is not in the job description

By its third question, the Belgian court is asking whether a parody must meet any other requirements. This Kat is inclined to stress that a parody must not be necessarily funny [as may appear instead implied by the referring court when it says that a parody is "designed to provoke humour or to mock"], as humour may come in all shapes and sizes, including wry and cheap/trashy humour.

While waiting for Thursday’s original Advocate General’s Opinion, how would readers respond to the questions referred by the Belgian court?