A French artist who was sued for copyright infringement over his canvases featuring Tintin (the protagonist of The Adventures of Tintin comic series originally created by late Belgian cartoonist Hergé) has won the first round in the French courts against Moulinsart, the company representing Hergé’s estate (as reported in the Guardian).
Xavier Marabout’s works depict Tintin in a series of romantic adventures set against backdrops based on the paintings of American artist, Edward Hopper. The result is an entertaining mash-up; however, Moulinsart does not see it that way.
Moulinsart accused Marabout of reproducing and adapting the world of Tintin without consent, arguing that “taking advantage of the reputation of a character to immerse him in an erotic universe has nothing to do with humour”. A lawyer for the company added that Hergé, had “explained his choice not to involve women in his work, because he found that they are rarely comic elements”.[1]
In his defence, Marabout’s lawyer claimed the paintings are parody. He pointed to a “conflict between copyright and freedom of expression and creation”, and asked “Does an artist have the right to wonder about Tintin’s sex life?” and “What about artistic freedom?”
In its judgment on 10 May 2021, the Court of Rennes found in Marabout’s favour, rejecting Moulinsart’s complaint for copyright infringement and infringement of moral rights.
“The court recognized the parody exception and the humorous intention expressed by my client. For justice, this humour resides in the quirky character which consists in mixing the universes of Tintin and the American painter Edward Hopper,” Marabout’s lawyer commented.
Moulinsart declined to comment at the time, but has a month to appeal the decision. From recent statements on its website, it appears that Moulinsart intends to appeal on the basis that (it considers) Marabout’s paintings go far beyond the parody exception to copyright infringement and are “adaptations (or appropriations) of Hergé's work that do not have the character of a legal parody”.
While we monitor the progress of the case, we can contemplate how these issues might be considered under UK law.
Exception to copyright infringement under UK law for the purpose of caricature, parody or pastiche
As set out in an earlier article, under UK law there is a ‘fair dealing’ exception to copyright infringement for the purpose of caricature, parody or pastiche. This exception means that, in principle, it is possible to use copyright-protected material without having to obtain permission from the rights holders to do so, but only to the extent that such use can be considered ‘fair dealing’.
There is some guidance on use that would typically fall within the exception (see,for example, the UK Intellectual Property Office’s comments on this issue). However, there is no statutory definition of the term ‘fair dealing’ – so, what is considered to be fair dealing will differ in each case depending on all the circumstances.
‘Fair dealing’ is assessed globally, and some of the factors that may be considered include:
- whether using the work affects the market for the original work. If a use of a work acts as a substitute for it, thereby causing the owner to lose revenue, then it is not likely to be fair.
- whether the amount of the work taken is reasonable and appropriate, and if it is necessary to use the amount that was taken. Usually only part of a work may be used when creating the parody.
- whether the parody will be harmful to the reputation of the rights holder or creator of the original work.
Essential characteristics of parody
In the leading EU judgment on parody (Deckmyn and another v Vandersteen and others, Case C-201/13), the ECJ indicated 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. The court also highlighted the need to strike a fair balance between the rights holders of the original work, and the freedom of expression of the maker of the parody.
Analysis
Fair dealing is a notoriously grey area of copyright law. In this case, Moulinsart would likely argue that Marabout has used a substantial part of Hergé’s original work by incorporating Hergé’s eponymous hero as the main character in his series of paintings.
However, lawyers for Marabout would likely counter this by arguing that the exception allows a reference to a copyright work - in essence, the ability to build upon it – and that this is precisely what Marabout has done by taking the character and depicting him in new settings and situations. Marabout would likely argue that his paintings imitate Hergé’s work, but are noticeably different from it, for humorous effect.
Taking these factors into account, it seems there is a fair possibility that a UK court would also find that Marabout’s use would fall within the exception (but it is possible it would nevertheless be considered an infringement of Hergé’s moral right to object to derogatory treatment of the work). The real issue for a court would be the search for a fair balance between the rights involved, being the rights of Moulinsart as the owner of rights in the original works versus Marabout's right to freedom of artistic expression. We await the outcome of any appeal through the French courts with interest.
Obtaining the express permission to use the work from the rights holder should avoid the risk of copyright infringement. Of course, this may not be possible. The rights holder may specifically object to the parodist’s expression, or may be more generally protective of their intellectual property (as Moulinsart is known to be). It is interesting to note that Marabout does not appear to have been pursued by the rights holders for Edward Hopper’s works, or works incorporated in his other paintings, some of which set Tex Avery characters in Picassos.
By definition, a parody is a comedic commentary on a work that requires an imitation of such work, and it is the purpose of the exception to preserve this right to imitate and comment on a copyright work. However, the ability to rely on the exception is not always clear-cut, and if in doubt, seek legal advice.
[1] Moulinsart also alleged infringement of Hergé’s moral rights. A full discussion of the moral rights position in this case is beyond the scope of this article.
