EU – Definition of “parody” by the CJEU

Parody is one of the exceptions to copyright infringement, contained in Article 5(3)(k) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. It means that a copyrighted work may be used without the consent of the author(s) for the purpose of caricature, parody or pastiche. However, the Directive does not expressly define the concept of parody.

In Luxembourg, the exception of parody is provided for under Article 10.6 of the Law of 18 April 2001 on Copyrights Neighbouring Rights and Databases as amended.

Under a decision dated 4 September 2014, the CJEU provided clarification of what is a parody and therefore, what is a permitted reproduction of a copyright work.

At the centre of proceedings was a calendar prepared by Mr Deckmyn containing a drawing which was a clear reference to one of the covers of a popular comic book Suske en Wiske, but with some xenophobic undertones.

The concept of parody is thus an autonomous concept of EU law that must be interpreted uniformly throughout the EU. Moreover, the Court held that the essential characteristics of a parody were the reference to an existing work whilst being different from it along with an expression of humour or mockery.

Nevertheless, a fair balance must be found between the freedom of expression of the user of a copyrighted work and the rights and interests of the rights holders to the original works being parodied when determining whether those works can be legitimately copied under EU copyright rules.

It is therefore up to national courts to determine, case by case, whether the modifications to a copyrighted work can benefit from the parody exception or not.