Deckmyn v Vandersteen

Original cover of Spike and Suzy (left) and the version of Deckmyn (right)

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 request for a preliminary ruling by the European Court of Justice, requested by the Court of Appeal (Dutch: Hof van Beroep) of Brussels (Belgium). The reference was made in a case of Vlaams Belang politician Johan Deckmyn who had copied a cover of Spike and Suzy (Dutch: Suske en Wiske), 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.

The reference concerns what conditions must be met for a derivative work to be considered a parody, which may be allowed according to EU law within the Copyright Directive. While the European Court of Justice has not announced its decision, its advocate general has given his (advisory) opinion on 22 May 2014 in which he held that the concept "parody" must be interpreted autonomously within the Union and that parody required a certain form of mocking and originality. In his opinion, much freedom in interpretation is given to the individual countries.

History

On 9 January 2011, during the New Year's reception of the city of Ghent, the Flemish nationalist political party Vlaams Belang 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.^[1] The persons collecting the money had dark-coloured skin and were wearing scarfs.^[2] Vlaams Belang politician Deckmyn said he wanted to highlight that in Ghent tax payer's money was mainly channelled to non-Ghent people, negatively impacting on 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.^[3]

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, the author of the comic, had written in his will that his comics could never be used for political purposes.^[3]

Belgian court cases

The Civil Court of the Court of First Instance of Brussels ruled on 17 February in a preliminary injunction 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.^[4] 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.^[2] It considered that the parody exception existed in Belgian law (copyright law of 1994, Article 22.1.6) and that the EU Infosoc directive allowed such a parody exception (Article 2.5.3.k) and had not explicitly left the definition of parody to national law.^[2] The concept of parody had furthermore not been explained by the European Court of Justice, and the court therefore decided to ask three questions of the European court:

1. Is the concept of "parody" an independent concept in European Union law?
2. If so, which of four suggested characteristics of parody have to be met to determine if a work is a parody?
3. Are there additional requirements?

The court stayed proceedings while awaiting the answer of the EU court.^[2]

Court of Justice of the European Union

Besides the parties in the conflict, the European Commission and the Kingdom of Belgium also opined, either in writing or during the hearing on 7 January 2014.^[5] 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 the Advocate General of the European Court of Justice 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.

Court Ruling

The court's decision was published on 3 September 2014.^[6] 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, 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.^[5] 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.^[7]

Chronology of events

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

See also

• List of European Court of Justice rulings

References

External links

• Court of Appeal Decision of 8 April 2013 in which preliminary questions are asked.
• Preliminary questions
• Opinion of the Advocate General
• ECLI:EU:C:2014:2132 court decision