The BNP can rip off your works for ‘parodies’ – but only if it's not racist

The Court of Justice of the European Union has ruled on who can use copyrighted work in a parody, and said it’s fair game – as long as it’s not, er, sexist or racist.

Traditionally, authors have been able to use moral rights to disassociate their work from a derivative. But this latest interpretation of the EU’s parody exception means a fascist group can use the work of a Left-wing firebrand like Billy Bragg, and there’s nothing he can do about it as long as that message isn't a sexist or racist one. (We’re not picking on Billy specifically – but he has cited such a scenario himself as an example of the value of strong moral rights.)

Article 5(3)(k) of the InfoSec Directive (EU directive 2001/29/EC) allows member states to introduce an exception for the purposes of “caricature, parody and pastiche” – the member state’s Parliament can then define this as it sees fit.

The case before the Court of Justice of the European Union (CJEU) involved a dispute between Johan Deckmyn, leader of the Vlaams Belang political party, and the authors of a series of children’s books called Suske en Wiske. Deckmyn published a calendar for party members featuring a parody of the cover of De Wilde Weldoener (The Compulsive Benefactor), one of the books in the Suske en Wiske series.

In the original, the cover illustration showed “one of the comic book’s main characters wearing a white tunic and throwing coins to people who are trying to pick them up”, according to the court. Yet Deckmyn's parody cover not only saw the lead character replaced by the Mayor of Ghent, it also had a racist subtext: in the parody the citizens collecting the coins were replaced by “people wearing veils and people of colour”, according to the court's ruling.

The heirs of the original books' author and illustrator objected to their work being used in this way and sued Deckmyn, along with the Vrijheidsfond VZW organisation which supports his political party. The case was referred to the CJEU by the Belgian courts.

The CJEU ruling acknowledged that authors have “a legitimate interest in ensuring that the work protected by copyright is not associated with such a message.”

The court also noted that the drawing “conveys a discriminatory message which has the effect of associating the protected work with such a message.”

They continue:

If that is indeed the case, which it is for the national court to assess, attention should be drawn to the principle of non-discrimination based on race, colour and ethnic origin, as was specifically defined in Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22), and confirmed, inter alia, by Article 21(1) of the Charter of Fundamental Rights of the European Union. 31 In those circumstances, holders of rights provided for in Articles 2 and 3 of Directive 2001/29, such as Vandersteen and Others, have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message.

Some fear that this ruling turns member states' judges into a kind of Comedy Taste Police.

Unanswered Qus in Deckmyn parody ruling. Will it turn copyright judges into arbiters of taste/human rights judges? http://t.co/XUR2yO9Hmz

— Managing IP (@ManagingIP) September 3, 2014

In 2010 the BNP made an election broadcast with the slogan “Love Britain Vote BNP” featuring a giant jar of Marmite. Unilever, producers of Marmite, sued – but chose to use trademark law, rather than copyright law.

What the court seemed concerned about in the current case was the image of people represented in the parody – not the rights of the author. ®