European Court asked for advise in "Spike and Suzy" parody case

On 17 April 2013, the Court of Appeals of Brussels lodged a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) in Luxembourg, in a case opposing the heirs of one of Belgium's most famous comic book authors (Willy Vandersteen) and the far-right political party 'Vlaams Belang' (more in particular, its MP Johan Deckmyn and the non-profit association 'Vrijheidsfonds', which is closely linked to Vlaams Belang).

The case concerns Vlaams Belang's adaptation of the cover of a comic book of Mr Vandersteen's 'Suske en Wiske' series ('Spike and Suzy' in English), entitled 'De Wilde Weldoener' ('The Wild Benefactor'). In Vlaams Belang's adaptation, the mayor of Ghent was depicted as one of the comic book characters, strewing gold coins to immigrants.

The heirs of Mr Vandersteen were not amused and sued Mr Deckmyn (who was mentioned as the "responsible editor" of the political cartoon) and Vrijheidsfonds for copyright infringement. At first instance, the President of the Court of First Instance of Brussels condemned Mr Deckmyn and Vrijheidsfonds for copyright infringement and ordered them to stop any future use of their adaptations under penalty of a fine of 5,000 Euros per infringement.

Mr Deckmyn and Vrijheidsfonds lodged an appeal against this decision, with the argument that the adaptation constituted a lawful use as a 'caricature, parody or pastiche' under article 22 (1)6 of the Belgian Copyright Act.

The Court of Appeals of Brussels noted that the concept of "parody" is not only a Belgian legal concept, but also a legal concept under EU law (more in particular, of Directive 2001/29). Neither the Directive 2001/29, nor the case law of the CJEU provides a clear definition of the concept of "parody". The Court of Appeals thus lodged a reference for a preliminary ruling to the CJEU, asking the CJEU to clarify the exact conditions that a "parody" should meet in order to be considered lawful under EU law (Case C-201/13, Deckmyn and Vrijheidsfonds). The preliminary ruling procedure of the CJEU is in essence a procedure where a national court is in doubt about the interpretation or validity of an aspect of EU law and asks the CJEU for advice. The national court will then resolve the specific dispute based on the advice (the 'preliminary ruling') received from the CJEU. In the meantime, pending a decision by the European Court, the case before the Court of Appeals of Brussels is suspended. 

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Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be