The clash of interests – parody is an important means of communication and, therefore, is protected under the principle of freedom of expression. However, parody requires a reference to something already known. In the “Deckmyn” case, the Court of Justice of the European Union (CJEU) considered the ‘concept of parody’ an autonomous concept of EU law and further explained “that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” (case no. C 201/13, para. 33). Often, references for parodies are copyrighted works – whether a painting, a song, a melody or a poem. The possibilities are manifold, but in all those cases the question of a copyright infringement comes up.
Eventually, it is, as put by the CJEU in “Deckmyn”, “an essential characteristic of parody” to evoke an existing work. Since the public addressed by the parody must be able to recognize the parodied work in order to ‘get the joke’, it is almost mandatory that the parody contains elements which reflect the expression of the intellectual creation of the author of the existing and thus parodied work. Since the latter is, in general, sufficient to establish a copyright infringement, the follow-up question is obvious: Should parody be allowed nonetheless given its importance in the context of freedom of expression and, if so, under which conditions should parody be allowed?
This follow-up question was the subject of the 2024 AIPPI Copyright Study Question (AIPPI = Association Internationale pour la Protection de la Propriété Intellectuelle) which was discussed during the AIPPI World Congress which took place from 19-22 October 2024 in Hangzhou (China). However, it is each national group’s contribution to the Study Question that forms the basis for discussions on this topic at the World Congress. The Study Question consisted of three parts, namely a complex on the current legal situation, a further part on policy considerations and proposals for improvements of said current legal situation, and a last part on the question of harmonization. The German national group of AIPPI is grateful for the opportunity to outline the main findings of its contribution here in the IntellectualPropertyMagazine and its larger platform.
What is a parody?
Since in most cases parody goes hand-in-hand with a copyright infringement, a parody of a copyrighted work can be made, without the author’s consent, only if an exemption or limitation applies. As regards the EU, it follows from Art. 5 (3) k) of Directive 2001/29 (InfoSoc-Directive) that each EU member state could provide an exception or limitation if the use of the work was made for the purpose of caricature, parody or pastiche. Germany made use of this option and implemented a limitation, inter alia, for use for the purpose of parody, Section 51a of the German Copyright Act.
Since the allegation of a copyright infringement can be rebutted if the concept of parody can be invoked in defense, it is, in a first step, crucial to define how ‘parody’ is interpreted. In German case law, there has been a long tradition to require that the parody contributes to an ‘anti-thematic discussion’ (Bundesgerichtshof (BGH), case no. I ZR 77/69, Disney-Parodie; BGH, case no. I ZR 264/91, Asterix-Persiflage). With this requirement, the BGH still took into account the relevance of ‘parody’ as a means of communication, but the requirement of an ‘anti-thematic discussion’ likewise limited the possibilities when one can rely on ‘parody’ as an exemption. The latter thus paid respect to the author of the parodied works and strengthened their rights. The foregoing, though, was prior to the CJEU’s “Deckmyn” ruling.
As noted above, the CJEU defines that “the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” (case no. C 201/13, para. 33). Accordingly, the CJEU deems some expression of humor or mockery sufficient, but does not require necessarily an expression of opinion, not to mention an ‘anti-thematic discussion’. The conditions when ‘parody’ can be invoked have been lowered notably which, on the one hand, strengthens the principle of freedom of expression, but, on the other hand, weakens the author’s position to shield their work from third-party references. In any case, the BGH adapted the CJEU’s definition with its “auf fett getrimmt” (“fat cut off”) ruling and abandoned the requirement of an ‘anti-thematic discussion’ [BGH, case no. I ZR 9/15, (34)]. Since then, it has also been settled in Germany that the expression of some kind of mockery or humor can be sufficient to assume a parody under German copyright law.
Call it ‘parody’ and take it for free
As a general rule, all rights to use are firstly allocated to the author. Under German law, this follows from Section 15 of the German Copyright Act. Hence, if a prior work is, for instance, reproduced, distributed or adapted, it is the default rule that either the author’s consent is required, or such use would amount to an infringement. As an exception to this default rule, one may make use of another’s work without their consent if a limitation applies, such as the limitation for caricature, parody or pastiche.
Since an author’s consent is often granted in return for some kind of renumeration, invoking a limitation would normally be the preferred choice, if possible. Therefore, and considering the lowered thresholds since the CJEU’s “Deckmyn” ruling, when to assume a ‘parody’ claiming that an example of content should be a parody in a case where a prior work served as a source of inspiration became more accessible.
However, it could be two different things whether reference to a prior work should be possible without consent, and whether or not the author should obtain some compensation for the use of their work. For some limitations it follows from Art. 5 (2) of the InfoSoc Directive that those may be provided on the condition only that the right holders receive a fair compensation [see: Art. 5 (2) a), b) e) of the InfoSoc-Directive]. The question of a compensation condition is particularly striking in cases of parody, since an identifiable reference is necessary so that the ‘joke’ of the parody can work. In other words: A parody rides, in the best way, on the prior work’s coattail.
Even though these considerations would also favor a compensation condition for the parody limitation, it must likewise be taken into account that parody is considered an essential communication means and is privileged as a result. Due to its role within freedom of expression, it is rather reasonable and appropriate to allow use of a prior work for the purpose of a parody even without any compensation. This approach corresponds with the current situation under German copyright law, but it was also the view taken by the German national group for its contribution to the study question.
Limitations of parody
Considering that some kind of mockery or humor can already be sufficient to establish a ‘parody’ and further, considering that, once a ‘parody’ has been established, neither the consent of the prior work’s author, nor the payment of some kind of compensation is required, the consequent follow-up question is whether there are, or, at least, should be some restrictions to the parody limitation.
Even though ‘parody’ is allowed a great deal of scope, it is not allowed to do everything. In the context of copyright law this firstly means that an overall assessment on a case-by-case basis remains required, and that this assessment needs to take into account both the interest of the parodist to choose this communication means as part of their freedom of expression, and the interests of the author of the parodied work in safeguarding the integrity and control over their work (BGH, case no. I ZR 9/15, para. 36ff – auf fett getrimmt; CJEU, case no. C 201/13, para. 26f – Deckmyn). Secondly, the moral rights of the author of the parodied work must be considered, too. These moral rights are anchored in Sections 12 to 14 of the German Copyright Act. Pursuant to Section 14 of the German Copyright Act, any distortion or derogatory treatment of a work which is capable of prejudicing the author’s legitimate intellectual or personal interest in their work is prohibited. However, in this regard it is firstly settled that an author has to endure more in a case where their work is ‘discussed’ by the parody than in a case where their work is used to ‘discuss’ a different topic (BGH, case no. I ZR 9/15, para. 36 et seq. – auf fett getrimmt). Secondly, German case law requires that the public attributes or, at least, links the adapted work to the author of the original since, if the adapted work were not attributed or linked, a detriment to their moral rights would barely be possible. In parody cases, at least an attribution is often missing since the public will figure out that the author of the original did not parody their own work (Higher Regional Court of Hamburg, case no. 5 U 80/20 – Ottifanten). Hence, there are some restrictions to the parody limitation, but the close link of parody with freedom of expressions weighs heavy so that, once a parody is assumed, quite comprehensive use is allowed.
Need for harmonization
The broad scope of the parody limitation is a strong plea for the principle of freedom of expression. Even though this approach is, in general, shared, the rights of the author of the parodied work also need to be considered. Therefore, some stricter thresholds when to apply the parody limitation might be deemed worth considering, particularly requiring a ‘thematic debate’ again instead of deeming that some kind of humor or mockery is sufficient. In any case, there is a strong need to harmonize the conditions of the parody limitation.
Communication often occurs online and, therefore, is cross-border. As a consequence, it is clearly preferable in the interest of legal certainty that the same conditions apply across borders. Consequently, the 2024 AIPPI Copyright Study Question addressed an important issue which was firstly discussed vividly on an international stage, before a resolution was drafted and adopted at the World Congress in Hangzhou (China).
The resolution finally adopted is available at www.aippi.org.
