Simple homage to pre-existing work doesn't qualify as parody under French law

One of the alleged parodic busts

The comic strip "The adventures of Tintin" and its characters, created by the Belgian cartoonist Hergé, have been the source of numerous copyright infringement disputes in recent years [here]. Such is the case with a recent decision issued by the Court of Appeal of Aix-En-Provence, concerning unauthorised sculptures of Tintin and the Moon rocket.

Background

The facts of this case are relatively simple. Mr A is the author of sculptures representing childhood characters from pop culture. Since 2017, the artist has produced, exhibited, and marketed busts inspired by the character of Tintin, and sculptures inspired by the rocket depicted in the albums "Destination Moon" and "Explorers on the Moon". Each of those sculptures is named after the volumes of "The adventures of Tintin".

Mrs R, Hergé's universal legatee, and the company Moulinsart, now called Tintinimaginatio, holder of the derivative and secondary rights to Hergé's work, became aware of those productions. On 18 March 2019, a counterfeit seizure was carried out. Consequently, Ms R and Moulinsart brought an action for copyright infringement before the Tribunal Judiciaire of Marseille. In a judgment dated 17 June 2021, the court granted the plaintiffs' claim. On 14 March 2022, a similar decision was also issued against the sculptor as he continued to create and sell new infringing busts. Mr A appealed those now joint decisions.

Analysis

In order to reach a decision, the Court of Appeal divided its analysis into two parts. It first considered the admissibility of the action brought by Ms R and Moulinsart. Then the Court examined the existence of acts infringing the plaintiffs' copyright.

After stating that Mrs R and Moulinsart had a valid interest in the action, the Court of Appeal confirmed the decision of the Tribunal Judiciaire on the originality of Tintin, the rocket and the titles of the comic strips. Indeed, relying explicitly on Article L. 111-1 of the French Code of Intellectual Property (CPI) the court noted that (my own translation) "an intellectual creation can only be protected if it reflects the personality of its author, in other words if it is original (...) It is sufficient that the work whose protection is claimed bears a truly personal imprint [empreinte de la personnalité] and reflects a creative work and effort expressing the personality of its author". The court also recalled the difference between originality and novelty as understood under design law and the non-relevance of prior art in copyright cases.

Thus, confirming the judgment of the court of first instance, the court held that Tintin is "a character with a distinctive personality, whose graphics are characterised by unconstrained aesthetic choices, such as his round face topped by a raised puff, round eyes, a small straight nose, a thin or round mouth, which are all essential characteristics that allow him to be identified at first glance".

Ready to walk on the Moon

This part calls for several remarks. It is unfortunate that the Court of Appeal once again refused to use exactly the terms derived from the case law of the CJEU, still relying heavily on the notion of personal imprint. As a matter of fact, authors who consider themselves a victim of copyright infringement must specify the outline of the free and creative choices that make the work an intellectual creation of their own. It is commendable that the court here, in a pure copyright dispute, did not bring into play the criterion of novelty. On this very topic, the Opinion in Cofemel of Advocate General Szpunar provides enlightening clarifications [IPKat on Cofemel here]. Indeed, design law and copyright pursue neither the same objectives, nor are they subject to the same conditions of protection.

It should be noted that the alleged infringer did not attempt to question the originality of Tintin. Contrary to the first instance judgment, it is also worth mentioning that the present judgment does not provide any substantive development as to the infringement of the economic and moral rights of the plaintiffs.

Once the originality point clarified, the court proceeded with its analysis. In order to avoid any conviction for copyright infringement, Mr A tried in vain to rely on the parody exception. Based rightfully on both a strict reading of Article L. 122-5 4) of the CPI, and the case-law of the CJEU [IPKat Deckmyn posts here], while not referencing it explicitly, the court recalled that, in order to benefit from the application of the parody exception, several conditions must be met. None were met here. In this respect, the court reminded that "the secondary work must evoke the pre-existing work and present perceptible differences from it so that there is no confusion with the parodied work. It must also constitute a manifestation of humour and mockery". By comparing the rocket and the character of Tintin with the sculptures of Mr A, the Court emphasised that no "element of particular humour", "of derision", "of distance" or "intellectual contribution" could be found. Confusion between them was clearly possible. This point was also accentuated by the additions of the titles of various volumes of "The adventure of Tintin". The Court even went as far as saying that these sculptures were merely aesthetic variations of the allegedly parodied works. All the elements supporting the originality of the pre-existing works could be found in the infringing sculptures. This is even truer given that Mr A was content to evoke a simple homage to the works of Hergé without any further elaboration.

The parody exception can only be applied if all of its conditions are met. Failure to comply with any one of them would result in its application being rejected. Exceptions and limitations to copyright have traditionally required to be interpreted strictly.

The practical aspect of the judgment must be stressed. The author of an alleged parody must demonstrate compliance with each of the aforesaid conditions, as named "lois du genre" under French IP law. As for the humorous intention, it can be demonstrated by any means, the French courts having a broad appreciation of it.

In the end, Mr A was invited by the Court to find new ways to express his creativity.