With special thanks to Martin Lose in our Hamburg office for his contribution to this article.
The right to parody – German Federal Court of Justice Follows CJEU
Two years after the CJEU defined "parody" in its Deckmyn decision ((C-201/13) see our previous blog here), the German Federal Court of Justice had to decide a case (I ZR 9/15) concerning the parody of a photograph of an actress. The photograph had been distorted as a result of an online competition where participants had been asked to change photographs of celebrities to make them look fat. The decision was eagerly awaited, as the judges had to clarify the interpretation of German copyright law including its relation to the respective provisions within EU law. This is the first case to be decided post-Deckmyn.
Under the Directive 2001/29/EC (InfoSoc Directive), key areas of copyright law have been harmonised and have been subsequently transposed into national law by member states. The directive also covers the right to "parody", Art. 5 (3)(k) of the InfoSoc Directive, as an exception to the exclusive rights of the copyright holder. Not surprisingly, implementing EU law into national law differs from member state to member state. The German legislator even failed to incorporate an explicit exception on parody into the German Copyright Act. Therefore, under German law, parody has to be judged in the light of the general "free use" clause, by virtue of section 24 (I) of the German Copyright Act. Parody is just one area of case law under this provision. The clause stipulates specific requirements for "free use". The key requirement for all kinds of free use is the creation of an independent work.
In its decision, the German Federal Court of Justice has now clarified that the legal standards given under European copyright law with regards to parody also apply to the corresponding German rules, even though the legislator failed to expressly implement the parody exception.
In essence, the Court established that:
1. Section 24 (I) of the German Copyright Act has to be interpreted in the light of Art. 5 (3)(k) of the InfoSoc Directive as far as it relates to parody.
2. The interpretation of the legal term "parody" under European law is therefore binding for the interpretation of section 24 (I) of the German Copyright Act. According to the CJEU´s Deckmyn decision, the parody defence has to only meet two conditions, namely to "evoke an existing work while being noticeably different from it" and "to constitute an expression of humour or mockery".
3. Resulting from the CJEU´s understanding of parody and against the explicit wording of section 24 (I) of the German Copyright Act, the creation of a work in its own right is no longer a requirement for the application of the parody defence under German law.
The German Federal Court, having established these useful principles, remitted the case back to the lower court (which applied the old 'free use' test) to decide.
The Court's judgment contributes to a harmonized interpretation of the legal requirements for parody within all EU member states. At the same time, the Court stretches the limits of legal interpretation by leaving out a legal criterion expressly incorporated in the wording of the German Copyright Act. It will be interesting to see what the lower court decides.
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