The misadventures of Tintin in the land of parody and freedom of artistic expression

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The adventures of the young boy with the quiff seem to be an inexhaustible source of copyright disputes [IPKat here or here]. Hergé’s legacy is fiercely defended by Mrs Rodwell and Tintinimaginatio against third parties who draw too much inspiration from his works. In addition to the copyright protection afforded to the fictional characters created by Hergé, these disputes provide an opportunity to explore the various means of defence available to alleged infringers. This time, a lengthy ruling of the Paris Court of Appeal provides an opportunity to examine both the parody exception and freedom of artistic expression, as well as the notion of transformative work.

One of X. Marabout’s litigious paintings

Facts

Mrs Rodwell is the universal legatee of Hergé’s work. The company Tintinimaginatio, formerly known as Moulinsart, is the exclusive owner of all exploitation rights to the work “Les aventures de Tintin“. 
Xavier Marabout, a parodist painter, produced a series of works depicting the character of Tintin in situations inspired by the world of the American painter Hopper. In particular, these paintings question Tintin’s love life and have been exhibited and sold since 2014. 
In 2015, Moulinsart and Hergé’s widow sued Marabout before the TGI of Rennes for copyright infringement and parasitism. In a ruling dated 10 May 2021, the court dismissed the plaintiffs’ claims, despite acknowledging the original nature of the characters in Hergé’s work. The TGI upheld the application of the parody exception in favour of Mr Marabout. 
On 9 July 2021, the plaintiffs appealed this decision.
The adventures of a Kat

Analysis

The key issue addressed in the appellate decision was the availability of the defences put forth by Marabout.

Parody

Starting with parody, relying on both article L. 122-5 of the CPI and related case law (though without naming it), the court recalled that “parody must be assessed restrictively and, in any event, in concreto. It therefore requires an obvious humorous intention, preferably involving a certain intensity, must allow the immediate identification of the work parodied, must be distinct from the original work without creating a risk of confusion between the works in question or leading to the appropriation of the work of others“. For the parody exception (an autonomous concept in EU law) to apply, all of its cumulative conditions, known as “lois du genre”, must be met [IPKat on parody here, here or here]. This assessment must take into account all the circumstances at issue.

Overturning the first instance judgment on this point, the CA rejected the application of the parody exception. Indeed, according to the court, “the mere fact of introducing powerful elements of sensuality into his works cannot be considered to be the result of a humorous intention (…) While his paintings may give rise to a smile or introduce an amused complicity with the viewer, this is never more than the effect produced, which is moreover quite legitimate, which does not mean that the respondent sought to provoke in a spirit of mockery”.

It should be remembered that exceptions and limitations to copyright are to be interpreted strictly as understood in ACI Adam e.a., C-435/12, [at 23]. This decision appears to be in line with the case law of CJEU, in particular with Deckmyn and its test [IPKat here], but it considers a “no confusion” requirement as well. The CA explicitly held that “the parodic work must be distinct from the original work without creating a risk of confusion between the works in question”. The requirement of “no confusion” appears to be a French one. Even though it was mentioned by AG Cruz Villalón in his opinion on Deckmyn, the CJEU did not follow that point.

Freedom of artistic expression

The Court continued its analysis by considering the artist’s defence based on freedom of expression. In this respect, the Court of Appeal recalled that “transformative works are not in themselves prohibited, but they do require the consent of the author of the original work. X. Marabout does not justify having requested the right to reproduce the pre-existing works constituted by the characters in ‘The Adventures of Tintin’. He has deliberately used icons of the comic strip to chart his own course“. The CA therefore overturned the first instance judgment insofar as it had dismissed Tintinimaginatio’s infringement action.

The passage concerning freedom of artistic expression warrants a closer look. First of all, freedom of expression under article 11 of the EU Charter cannot be raised as a defence in its own right in copyright infringement proceedings. Freedom of expression is already included in the parody exception itself, with the judge then balancing it against copyright to ensure that a fair balance is struck, as required in Funke Medien and Spiegel Online.

Furthermore, this is not the first time that an artist whose work is close to the appropriation art movement tries to justify their actions by invoking freedom of expression [IPKat here]. It involves taking elements of society, particularly pop culture, and remixing them to create a new work, which can be likened to a derivative work. As the Court rightly pointed out, French law on composite works makes it possible to incorporate the practice of mash-ups, notably under article L. 113-4 of CPI.

However, this does not mean that the creation of this type of work is lawful: lacking an applicable defence, the consent of the author or rightful owner of the original work is essential. This is all the truer given that there is no such thing as fair use under French or EU law.

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