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.

"Girls" Parody or Just Infringement?

Some of our readers may be familiar with this video by San Francisco start up toymaker, GoldieBlox, which recently went viral.  The company develops science and engineering-related toys for girls.  In the video several young girls build a Rube Goldberg machine to turn off a television.  The soundtrack is a version of the Beastie Boys song "Girls," but with new, female-positive lyrics.  The Beastie Boys were not pleased about the use of their song.  When the band attempted to confront GoldieBlox about use of the song, GoldieBlox rapidly filed a lawsuit in U.S. District Court for the Northern District of California seeking declaratory judgment that their use of the Beastie Boys song was parody, and accordingly fair use, not copyright infringement.

In an open letter to GoldieBlox, which the Beastie Boys shared with the New York Times on Monday, the group maintains that they support the work and the message of the start up, but are committed to keeping their music out of advertisements. The band argues that the video was designed to advertise and sell GoldieBlox toys and that using the new version of the song is copyright infringement.

GoldieBlox maintains that their version of the song is not just devised for selling toys, but intended to comment on the original while empowering young girls.  As the complaint states:

In the lyrics of the Beastie Boys’ original song, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls by the Beastie Boys but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.

Under U.S. copyright law, fair use of a copyright-protected work is determined by examining the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work.  In the case of parody, the threshold question is whether a parodic character may reasonably be perceived.  In examining parody one must consider the critical bearing on the substance or style of the original.  Undoubtedly, the original version of the song, recorded in 1986, is degrading to women, referencing the desire for "girls" to do the dishes and the laundry.  The song featured in the GoldieBlox video substitutes new lyrics about girls building spaceships, writing code, and engineering that would seem to bear rather directly on the demeaning character of the original.  

The complaint was filed late last week, and attorneys for the Beastie Boys have yet to appear.  As the band has become far more socially and politically conscious over its long existence these would seem particularly difficult public relations to navigate, and it will be interesting to see how this lawsuit unfolds, if at all.