Wednesday 28 January 2015

Tuymans tussle over alleged parody: no defence, says court

"Tuymans found guilty in copyright case involving political portrait", an online-only piece by Julia Halperin for The Art Newspaper last week, related the tale of Belgian artist Luc Tuymans, who was held liable for copyright infringement by a civil court in Antwerp which ruled that Tuymans’s painting, "A Belgian Politician", this being a heavily cropped image of the MP Jean-Marie Dedecker (shown right), borrowed too heavily from a photograph taken in 2010 by photojournalist Katrijn Van Giel (show left. The article adds, in relevant part, that
The court has forbidden Tuymans from making additional versions of the work; he faces a €500,000 penalty if he does not comply. He must also secure Van Giel's permission in order to publicly exhibit the painting in the future. The ruling, delivered a week ahead of schedule, did not address whether Tuymans owes any additional damages to the photographer. “This may come at a later stage, in separate proceedings,” says Van Giel’s lawyer Dieter Delarue.

Both Van Giel’s photograph and Tuymans’s painting capture the top half of Dedecker’s face. The controversial politician’s brow is furrowed and beads of sweat are collecting on his harshly lit forehead. ...

... Tuymans admitted that Van Giel’s photograph served as inspiration for the painting. But the artist denied he had violated copyright law and claimed that his work—rendered in a characteristically muted palette—was a parody rather than a copy. Tuymans’s lawyers have argued that the painting is a critique of Belgian society’s growing conservatism.
“We are happy that the court was not misled by Tuymans’ argument that his work is a parody. The court followed our argument that the work of Tuymans is not a humorous work, which is the most important requirement for a work to qualify as a parody,” says Delarue, Van Giel’s lawyer.

It is understood that Tuymans plans to appeal.

This is the first parody ruling to come to this blogger's attention since Case C-201/13 Deckmyn [on which you can study an entire oeuvre of blogposts on the IPKat by Eleonora Rosati, here], in which the Court of Justice of the European Union laid down the first set of principles by which defences of parody in copyright infringement actions should be measured. In short, the court ruled that
1. Article 5(3)(k) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the concept of ‘parody’ appearing in that provision is an autonomous concept of EU law.

2. Article 5(3)(k) of Directive 2001/29 must be interpreted as meaning 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 concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.

However, the application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k).

It is for the national court to determine, in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance.
The Antwerp court's ruling looks as though it fits the Deckmyn rules: no humour and no mockery = no parody and no defence.  Coincidentally both this case and Deckmyn concern alleged Belgian parody.

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