The dispute over humour that reached the EU’s highest court

We can now know whether this rendition of Miley Cyrus is (legally) parody. tehchix0r, CC BY-NC-SA

You probably don’t tend to consider any legal issues while watching Rita Ora’s recent parody of Beyonce’s 7/11 or the Chatroulette version of Miley Cyrus’s Wrecking Ball.

But there are limits to the extent of these gleefully wicked remakes and remixes, and these limits are also constantly changing as the legal world strains to keep up with all the new ways modern technology allows us to mock others.

Parody involves the re-use of someone else’s work and more often than not, the latter is a work protected by copyright. This means that authors have the exclusive right to reproduce their works (in whole or in part) and do so by any means and in any form. The author also has the exclusive rights to make their works available to the public, and distribute them.

But if it was as simple as that, then there would be no Flight of the Conchords doing the Pet Shop Boys, and most of South Park would be nonexistent. So there are of course exceptions to copyright protection that allow third parties to use someone’s work without having to ask for permission first.

The InfoSoc Directive allows member states of the European Union (EU) to introduce into their own copyright laws an exception “for the purpose of caricature, parody or pastiche”. This for instance was the legal basis that allowed the UK to introduce – among others – a new exception along these lines last year.

But what are the limits of parody? Come to that, what is parody? Defining this tricky cultural phenomenon was the job of the Court of Justice of the European Union (CJEU) a few months ago over a dispute about the estate of the late comic book creator Willy Vandersteen and the members of Flemish nationalist political party Vlaams Belang.

What is parody?

During a public event in early 2011, Vlaams Belang distributed a calendar. Its cover was a modified version of a comic book cover of Vandersteen’s popular Suske en Wiske series: The Compulsive Benefactor (De Wilde Weldoener). Vandersteen’s original drawing featured one of the comic book’s main characters wearing a white tunic and throwing coins to people who are trying to pick them up. In the drawing used by Vlaams Belang, this character was replaced by the mayor of the city of Ghent and the people picking up the coins were replaced by people wearing veils and people of colour.

The original work (left) and the spoof (right).

The Vandersteen estate and the holders of the rights to this particular comic brought proceedings against Vlaams Belang. They argued successfully that the drawing that the political party had used on the calendar cover amounted to a copyright infringement of Vandersteen’s original drawing. The party appealed this decision on the grounds that – among other things – the calendar cover fell within the scope of Belgian exception for parody, caricature and pastiche.

The Belgian Court of Appeal was somewhat flummoxed by this case, which rested entirely on what parody actually was. So they reverted to the European Court of Justice for guidance as to what a parody is and what characteristics a work must possess to be considered a parody.

Laugh out loud

As usual, it took a few months for the CJEU to work this out. But finally, it came to its decision in September 2014.

For the first time under EU copyright law, parody received a legal definition. According to the CJEU, a parody has just two essential characteristics: to evoke an existing work while being noticeably different from it and that it constitutes an expression of humour or mockery.

It is worth highlighting that the CJEU did not clarify whether a parody is also required to actually be funny, but it is probably fair to assume that humorous intent is enough. Of course, parody is protected within freedom of expression. It would be unduly restrictive if only actually funny people were able to enjoy the right to parody as part of their freedom of expression, with those who just are not very witty ineligible for protection.

So the court acknowledged that the right to parody is protected within freedom of expression, but also held that such freedom is not unlimited. So a parody that conveys a message that is discriminatory or racist probably would not fly. The original author of the parodied work has a legitimate interest in ensuring that their work protected by copyright is not associated with the message conveyed by its parody.

So despite all its efforts, the Flemish nationalist political party is not safe yet. Its case has gone all the way to the EU courts, it has even got the word “parody” a legal definition for the first time, but it may fall at the last hurdle … for being racist.