Parody ruling carries ‘sting in the tail’
An EU court ruling on parodies may seem good for would-be mimickers but they may be hamstrung by its finding on discrimination, copyright lawyers say.
The Court of Justice of the European Union (CJEU) ruled yesterday (September 3) in a dispute between a comic book and a Belgian politician, who had parodied a character using a version of the publication’s front cover.
The court defined a ‘parody’ as evoking an existing work while being noticeably different from it, and constituting an expression of humour or mockery.
It added that national courts must strike a fair balance between right holders’ interests and the parodist, and that if a parody conveys a discriminatory message the right holder has a legitimate interest in disassociating its work from the message.
By requiring that the parody is “noticeably different” from the original work, said Tom Ohta, associate at Bristows LLP, the CJEU has made it clear that the scope of the parody exception does not extend to “slavish copies” of the original work.
However, the court’s wide definition of parody raises as many questions as it answers, said Adam Rendle, senior associate at Taylor Wessing LLP.
“How ‘noticeably different’ does a parody need to be? If a song is being parodied, what happens where the melody and sound recording are not changed at all but the lyrics are ‘noticeably different’?” he asked.
Despite this, the court provided an important “sting in the tail”, said Rendle, referring to the finding that in principle right holders can disassociate themselves from discriminatory messages.
In the case at hand, the politician, Johan Deckmyn, had mimicked a character who wore a white tunic while scattering coins for people surrounding it. In Deckmyn’s parody, the character was replaced by the mayor of Ghent and the people picking up the coins were wearing veils.
Therefore, said the plaintiffs, the parodist’s message was discriminatory on the basis of “race, colour and ethnic origin”.
But Ohta said other grounds of discrimination listed in the Charter of Fundamental Rights of the European Union may also apply. These include religion or belief, age and sexual orientation.
“It seems likely that the original author can now assert that a parody falls outside the scope of the exception because it conveys a message that falls within any of the grounds of discrimination listed under the Charter,” Ohta said. “Ultimately, whether such grounds will be successful will come down to an objective assessment by the court of whether the parody has such a discriminatory meaning.”
For UK right owners and practitioners, the CJEU ruling is timely as the country is set to implement a parody exception on October 1.
As a result, said Rendle, English judges will have to give their views on things such as striking a fair balance and also how the fair dealing test, a UK standard which the CJEU does not directly deal with, applies to parodies.
“However, courts assessing where the ‘fair balance’ lies have to take into account all the circumstances of the case, which is similar to the approach they would take when carrying out the fair dealing analysis.”
Theo Savvides, partner at Bristows LLP, assisted Tom Ohta with his comments.
