Johan Deckmyn and Vrijheidsfonds VZW vs Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH and WPG Uitgevers België is a preliminary ruling by the

European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...

. The reference concerned what conditions must be met for a

derivative work In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work (the underlying work). The derivative work becomes a second, separate work independent from ...

to be considered a

parody A parody is a creative work designed to imitate, comment on, and/or mock its subject by means of satire, satirical or irony, ironic imitation. Often its subject is an Originality, original work or some aspect of it (theme/content, author, style, e ...

. Parodies are allowed under the

Information Society Directive The Copyright and Information Society Directive 20012001/29 is a directive in European Union law that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. ...

, in those countries that have indicated to apply the parody exception. The European Court of Justice indicated that the definition of the copyright exceptions was consistent throughout the EU (and given "an autonomous meaning" within the directive) and that to qualify the work must "evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery". The humour or mockery does not need to be directed towards the work itself, but it can also be mockery of something/someone else. When considering a parody-case the court should strike a fair balance between the rights of the rights holders of the original work, as the maker of the parody. The ruling was requested by the

court of appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

() of Brussels (Belgium) in a case of

Vlaams Belang Vlaams Belang (; ; VB) is a Flemish nationalist, Eurosceptic and right-wing populist political party in the Flemish Region and Brussels Capital Region of Belgium. It is widely considered by the media and political analysts to be on the polit ...

politician Johan Deckmyn who had copied a cover of Spike and Suzy (), in which he had positioned Daniël Termont, the mayor of Ghent. The rights holders of the comic had sued Deckmyn for copyright infringement. Because the interpretation of EU law was involved in the case, the Belgian court made the reference.

History

On 9 January 2011, during the New Year's reception of the city of

Ghent Ghent ( ; ; historically known as ''Gaunt'' in English) is a City status in Belgium, city and a Municipalities of Belgium, municipality in the Flemish Region of Belgium. It is the capital and largest city of the Provinces of Belgium, province ...

, the Flemish nationalist political party

handed out 2000 calendars with a cover largely copied from the cover of the 1961 Spike and Suzy comic ''De Wilde Weldoener'' (''the Wild Benefactor''). In the derivative image, money was distributed by Daniël Termont, the mayor of Ghent, whose image replaced that of Lambic, the original character. The persons collecting the money had dark-coloured skin and were wearing scarfs. Vlaams Belang politician Deckmyn said he wanted to highlight that in Ghent tax payer's money was mainly channelled to non-Ghent people, reducing the quality of life in the city as a whole. He indicated that "a child could see it was a parody" of the original Spike and Suzy cover. The publisher of Spike and Suzy, WPG Uitgevers, said there had been no contact regarding the cover with them, and that no permission had been given; they dissociated themselves from the text and said that in their opinion the cover was "beyond parody":

Willy Vandersteen Willebrord Jan Frans Maria "Willy" Vandersteen (15 February 1913 – 28 August 1990) was a Belgian creator of comic books. In a career spanning 50 years, he created a large studio and published more than 1,000 comic albums in over 25 series, sel ...

, the author of the comic, had written in his will that his comics could never be used for political purposes.

Belgian court cases

The civil division of the tribunal of first instance of Brussels ruled on 17 February in a

preliminary injunction An injunction is an equitable remedy in the form of a special court order compelling a party to do or refrain from doing certain acts. It was developed by the English courts of equity but its origins go back to Roman law and the equitable reme ...

on the action that VanderSteen c.s. (the five heirs of Willy VanderSteen and the publishers) had started against Deckmyn and Vrijheidsfonds. The court held that the calendars infringed the Spike and Suzy copyright and that the parody exception did not apply. The vzw Vrijheidsfonds (the association collecting gifts for Vlaams Belang) and Deckmyn were not to distribute the calendars. Both defendants (Deckmyn, case 2011/AR/914 and Vrijheidsfonds, case 2011/AR/915) appealed the verdict to the court of appeal in Brussels. In its preliminary decision the 8th Chamber of the Court merged both cases, and ruled that the calendar depicted a discriminating message. It considered that the parody exception existed in Belgian law (copyright law of 1994, Article 22.1.6) and that the Infosoc directive allowed such a parody exception (Article 2.5.3.k) and had not explicitly left the definition of parody to national law. The concept of parody had furthermore not been explained by the

, and the court therefore decided to ask three questions of the European court: #Is the concept of "parody" an independent concept in European Union law? #If so, which of four suggested characteristics of parody have to be met to determine if a work is a parody? #Are there additional requirements? The court stayed proceedings while awaiting the answer of the EU court.

Court of Justice of the European Union

Besides the parties in the conflict, the

European Commission The European Commission (EC) is the primary Executive (government), executive arm of the European Union (EU). It operates as a cabinet government, with a number of European Commissioner, members of the Commission (directorial system, informall ...

and the

Kingdom of Belgium Belgium, officially the Kingdom of Belgium, is a country in Northwestern Europe. Situated in a coastal lowland region known as the Low Countries, it is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southe ...

also opined, either in writing or during the hearing on 7 January 2014. The Advocate General gave his opinion on 22 May 2014, while the court had not ruled as of July 2014.

Opinion of the Advocate General

The opinion of Advocate General of the European Court of Justice Pedro Cruz Villalón was delivered on 22 May 2014. He agreed with the court of appeal: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law, although there may be a "wide margin of interpretation" left to individual countries. The Advocate General discussed the last two question together and argued that while exceptions to a general rule in EU law should generally be interpreted narrowly, in the exceptions under 2.5.3 a wide margin of interpretation was given to the individual member states and they should give in such a case due regard to evaluation of the fundamental rights of the European Union. He suggested that for a work to be considered a parody, it should evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour and mockery.

Court Ruling

The court's decision was published on 3 September 2014.JUDGMENT OF THE COURT (Grand Chamber), Case C‑201/13. Preliminary ruling. Retrieved 23 April 2015
The court largely followed the position of the Advocate-General: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law. Its definition should thus be the same in all member states applying the directive. The court indicated that in order for a work to constitute a parody it is required to "evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery". The parody itself does not need to meet originality requirements for a work, although it must be noticeably different from the work it is based on. Lastly the court specified that courts should strike a fair balance between the rights holders of the original work, and the maker of the parody.

Chronology of events

In the table below the events and the involved parties are placed in chronological order.

References

External links

Court of Appeal Decision
of 8 April 2013 in which preliminary questions are asked.
Preliminary questions
*, * court decision {{Spike and Suzy 2014 in case law Comics involved in plagiarism controversies Copyright case law Court of Justice of the European Union case law Parodies of comics Political controversies in Belgium Spike and Suzy Vlaams Belang