Gimme an evocative, different and funny parody but hold the discrimination

Gimme an evocative, different and funny parody but hold the discrimination

What are the essential characteristics of a parody under EU law?

Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and others: Case C-201/13

The Court of Justice of the European Union (CJEU) has decided that the essential characteristics of a parody within the meaning of Directive 2001/29/EC, art 5(3)(k) (the InfoSoc Directive) are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery. A parody need not display an original character of its own except it must display noticeable differences to the original work parodied. The exception for parody must strike a fair balance between the interests and rights of authors and other rights holders and the freedom of expression of the person who wishes to rely on that exception.

What was the factual background to this claim?

The background to this case—in which the front cover of a comic book was parodied—is covered comprehensibly in our analysis covering the AG’s opinion: Deckmyn—should a parody be LOL or anything else for that matter?

What is the nub of the case?

Whether a work benefits from the parody exception is important because copyright (moral rights and trade mark) infringement may occur when a parodic work is made.

The CJEU was asked to clarify the conditions or other characteristics that a work must fulfil in order to be classifiable as parody, such as:

  1. being original in its own right so that it cannot reasonably be ascribed to the author of the original work
  2. being humorous or mocking
  3. mentioning the source of the parodied work

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