[Guest Post] Third time’s a charm: The Little Mermaid and a big win for satire and freedom of speech

The IPKat is pleased to host the guest contribution below by Katfriends Hanne Kirk and Paul Sina (Gorrissen Federspiel) on the recent Danish Supreme Court decision concerning The Little Mermaid. Here's what they write:

Third time’s a charm: The Little Mermaid and a big win for satire and freedom of speech

by Hanne Kirk and Paul Sina

In a ruling that shakes up the boundaries of copyright and parody in Denmark, the Danish Supreme Court has underlined the significance of freedom of speech and manifested the existence of a Danish copyright parody principle – including when the subject of debate involves a national symbol.

At the heart of this landmark decision is a much-loved Danish national symbol, The Little Mermaid. Sculpted by Edvard Eriksen, the statue was ‘re-elaborated’ twice by newspaper Berlingske: one version depicting her with a zombie face during the 2019 election campaign, and the other with a facemask in the midst of the COVID-19 pandemic in 2020. These interpretations, acting as socially critical commentary, sparked a heated debate and consequent lawsuit from Eriksen's heirs, alleging copyright infringement.

Below you see the two ‘re-elaborations’:

While the District and High Courts initially sided with Eriksen's heirs, the Supreme Court offered a different perspective. You can read our previous post on the High Court ruling here.

Berlingske did not accept the decision denying applicability of a parody defence. Heavily supported by a legal opinion (in Danish only) from the full range of Danish IP professors, the newspaper applied for a leave to appeal to the Supreme Court. Such a leave to appeal and a chance for ‘a third round’ is not easy to obtain and is conditional upon whether the case raises “questions of principle”. This case sure did and Berlingske got the permission.

Exonerating Berlingske's chief editor from copyright infringement allegations, the Supreme Court's decision hinged on the principle of parody, a vital element of Danish and Nordic tradition within copyright law, intrinsically linked to freedom of speech.

Echoing the European Court of Justice (CJEU)'s judgment in the Deckmyn case [Katposts here] and thus finally aligning with the EU copyright directives and the case law of the CJEU, the Danish Supreme Court gave a very clear and precise description of when something is considered a parody.

As its essential characteristic, a parody must evoke a pre-existing work but must at the same time display visible differences so that there is no risk of confusion. The judgment further emphasized that it is not an independent requirement that the parody must have its own original character. However, in the specific case the Supreme Court concluded that the zombie drawing did in fact appear as a caricature, which, with its various elements, met the requirements to constitute an independent copyright work.

This means that, even though Denmark did not incorporate Art (5)(3)(k) of Directive 2001/29/EC (the InfoSoc Directive) into its own law, the Supreme Court's decision demonstrates that there is indeed a non-statutory parody principle in Danish law, which must be interpreted in accordance with EU law.

What if the use is not covered by parody? The Supreme Court also provided an answer to this question. In such a case, a concrete balancing of considerations must be made between the right to freedom of expression according to ECHR Article 10 and the considerations of copyright protection. Particularly relevant to this assessment is whether the expression in question has social relevance and the extent to which the expression contributes to a debate of public interest.

To determine whether a given statement or expression holds societal significance, various aspects must be taken into consideration. These include the pivotal role of the press in our society, the political content of the expression, and the fundamental right to artistic freedom. When all is said and done, it will always depend on a specific assessment of whether the enforcement of the invoked IP right results in a broader compression of freedom of expression than what is necessary in a democratic society.

In the specific case of the photograph of the mask-wearing mermaid, the Supreme Court found that the purpose of the photograph was to generate debate in the public. It was of particular resonance that it was the mermaid as a national symbol that was the focal point of the photographic expression – and not the Little Mermaid as an artistic work.

The decision conveyed a clear message: Parody or not, encouraging public debate on societal matters are safeguarded under the freedom of speech, in particular if national symbols are in question and if the enforcement of the claimed IP right interferes with freedom of expression beyond what is necessary.

This ruling has significant implications for Danish copyright law and the broader fields of media and art in Denmark. It not only clarifies that parodies enjoy protection, but also provides guidance on their use within public discourse without breaching copyright laws. It's a critical reaffirmation of freedom of speech, especially for satirists and cartoonists who employ humor and caricature to critique societal issues. At the same time, it's a signal to copyright holders that their works might be subject to reinterpretation within the law's boundaries, especially in a satirical or critical commentary context.