[Guest post] What do a (little) mermaid and a non-statutory caricature/parody exception share? A tale from Denmark

The IPKat is pleased to host the guest contribution below by Katfriends Jakob Plesner Mathiasen, Hanne Kirk, and Philip Henszelman (all Gorrissen Federspiel) on a recent Danish decision tackling issues relating to copyright protection, non-statutory exceptions for parody/caricature, and freedom of expression.

Here's what they write:

What do a (little) mermaid and a non-statutory caricature/parody exception share? A tale from Denmark

by Jakob Plesner Mathiasen, Hanne Kirk, and Philip Henszelman

The Little Mermaid is the story of a young mermaid who falls in love with a handsome prince and who is

willing to sacrifice her life as a mermaid to gain a human soul to be with the love of her life. How the story ends depends on whether you read the original fairy tale written by H.C. Andersen in 1837 or watch the slightly jollier Walt Disney version of 1989 – no spoilers until later...

The Little Mermaid in the form of a statue is placed in the waters of the Copenhagen harbour. The statue was created in 1913 by Danish sculptor Edvard Eriksen, who was inspired by H.C. Andersen’s fairy tale. Eriksen died in 1959 and the copyright will expire at the end of 2029.

Copenhagen's Little Mermaid ...

This statue was the centre of an exciting decision of the Danish High Court of 9 February 2022. The case has been previously mentioned by the IPKat.

The dispute leading to this decision saw, on the one side, Danish newspaper Berlingske and, on the other side, the heirs of Edvard Eriksen. It related to the question whether unauthorized reproduction of the statue by the former was permissible due to a non-statutory exception for caricature or parody or because of freedom of expression.

The use of the Little Mermaid by Berlingske

In 2019 and 2020, the newspaper used the statue twice without permission from Eriksen's heirs.

The first use was on the front page of the newspaper, where a drawing of the statue as a zombie was published accompanied by the caption: “Evilness in Denmark”. The article concerned how other Nordic countries viewed the immigration debate culture in Denmark, with some pointing to the rhetoric as being ‘evil’ (hence, the demonized mermaid, who by many is seen as a symbol of Denmark).

The second use was in the context of an article with a photography of the Little Mermaid wearing a face mask and the caption: “Are you afraid of corona? Then you probably vote for the Danish People’s Party”.

The newspaper argued that both uses required no permission – primarily because they were lawful caricatures/parodies. Alternatively, the use should be deemed permissible under the freedom of expression protection in Article 10 of the European Convention of Human Rights.

The decision of the Danish High Court

The Danish Copyright Act does not include a specific exception allowing the use of copyright works for the purpose of making caricatures or parodies. The preparatory works to the Danish Copyright Act, however, note that a non-statutory caricature exception exists in Danish law. Until the ruling, it has therefore widely been accepted in the Danish literature that a caricature exception does exist.

According to Article 5(3)(k) of the InfoSoc Directive, Member States may allow for exceptions or limitations to copyright protection in case of “use for the purpose of caricature, parody or pastiche.” As a result, many countries have decided to implement a specific parody/caricature exception in their copyright laws. Some countries such as Denmark and Sweden have left it for the courts to decide.

In an unusually long (79 pages) and sharp ruling, the High Court almost appeared to quash the idea of an implied Danish caricature/parody exception. It found no basis for such an exception to generally exist in Danish law. If the principle existed in Danish law, the applicability of such principle would be extremely limited, according to the Court.

The Court analyzed the legal status of caricature/parody exceptions in other European countries. Based on this analysis, the Court concluded that no general international copyright tradition for caricature/parody exists.

The newspaper was therefore not allowed to use pictures of the Little Mermaid with reference to it being a caricature or parody. So much for making fun of copyright holders in Denmark.

... and the Kat-Mermaid

Finally, the Court examined whether the use could be permitted with reference to Article 10 of the European Convention of Human Rights. The Danish courts have previously been dismissive of such claims. The Court conducted a proportionality assessment and balanced the enforcement of copyright against the freedom of expression.

In this assessment, the Court noted that the two newspaper articles undoubtedly were of significant societal interest. However, the points made could have been illustrated in other ways. As such, use of the Little Mermaid was not necessary to convey the message of the two articles. On this basis, the freedom of expression argument was dismissed.

The European Court of Human Rights (ECHR) leaves a wide margin of appreciation for the national courts to decide on such conflicts. On this part of the ruling the Danish Court therefore seems to be in line with the ECHR. For more information on the case law from the ECHR see the previous IPKat articles on Ashby Donald v. France (Ashby Donald) and Fredrik Neij and Peter Sunde Kolmisoppi v. Sweden (Pirate Bay).

… How does the tale of the Little Mermaid actually end?

In the Walt Disney version the Little Mermaid gives up her life at sea and marries the prince, and they live happily ever after. In the real story, the tale has a much darker, deeper ending. The mermaid has her tongue cut out. The prince marries another girl, wrongly assuming that she saved his life, while the mermaid is watching, and is faced with one last chance of survival: either she uses the sea witch’s knife to stab the prince in the heart or she dies the morning after. Despite the entire unfairness of the story and because of her great love, she gives up life. The next morning, she turns – as mermaids do when they die – to foam on the surface of the water.

It feels like H.C. Andersen’s mermaid and the Danish caricature/parody exception share similar fates. They tragically die. We are however excited to see if Berlingske accepts such a fate for the caricature/parody exception of if they will try to appeal the decision to the Supreme Court. The last chapter in this adventure might be yet to be written after all.