Two Italian and French court case decisions have recently provided new insight into the requirements and limitations of parody as an exception to copyright infringement in their respective jurisdictions. The Court of Appeal of Aix-En-Provence and the Italian Supreme Court detailed strict but different requirements for work to qualify as parody, and in both cases, we can see the complexity in determining how the exception can and should be met.
Parody in France
In its recent judgment, the Court of Appeal of Aix-En-Provence considered the copyright status of unauthorised sculptures based on the Belgian comic cartoon, The Adventures of Tintin: Destination Moon (1953). The Court examined multiple points, but this article explores the Court’s opinion on whether the sculptures in question constituted parody and could avoid copyright infringement.
The court expressed that several conditions must be met to benefit from the parody exception, but in this instance none had been met. In particular, the court highlighted that the secondary work must evoke a pre-existing work yet present explicit differences to prevent confusion between the two.
Furthermore, the court commented that parodied work must be a representation of mockery and humour. The sculptures also failed to satisfy the court to this end and the court ultimately found that the sculptures were essentially just aesthetic variations of an original work.
In France, then, for work to qualify under the parody exception to copyright, the secondary work must:
- encapsulate an original work but present explicit differences;
- avoid confusion between the original and itself; and
- Have an element of mockery and humour.
Parody in Italy
In CO.GE.DI. International – Compagnia Generale Distribuzion s.p.a v Zorro Productions Inc (decision 38165/2022, Italy’s Supreme Court considered an advertisement which featured an actor dressed up as popular character Zorro without authorisation from the copyright and trade mark holder. Here, we will only consider the court’s consideration of the copyright element and whether the portrayal satisfied the parody exception to copyright infringement.
Initially Zorro Productions successfully claimed that this portrayal was an infringement of its copyright and trade mark rights in the first instance, though the Court of Appeal of Rome later overturned this on the basis that Zorro had fallen in the public domain. In 2017, the Supreme Court asked the Court of Appeal to re-review its decision after finding that Zorro was still protected by copyright under the 70-year ‘after the death date of the author’ term. In 2018, the Court of Appeal ruled that Zorro was a protected fictional character and that its alleged parody in the advertisement would be prohibited as:
- Italy did not expressly transpose Article 5(3)(k) of the Information Society Directive (‘’Directive’’) into its legal system (which offers parody as an exception to copyright); and
- a parody requires a creative re-elaboration of an earlier work.
In review of the above, the Italian Supreme Court noted in 2022 that, under Italian law, a parody inherently suggests an "unavoidable parasitic character’’, so it is not necessary for it to be a creative re-elaboration of an already existing work. It is distinct from the original because of a "conceptual difference’’. On this basis, and on the basis that doing so would contravene the freedoms of expression and artistic expression in Articles 21 and 33 of the Italian Constitution, the court held that parody is not a derivative work in Italy.
The court also pointed to Article 70(1) of the Italian Copyright Act, which considers parody a type of quotation used for the purpose of criticism or review. Furthermore, the court highlighted that, although Article 5(3)(k) of the Directive was not expressly adopted by Italy, the Italian legal system already understood parody to be an exception to copyright, as demonstrated by the Court of Justice of the European Union (CJEU) in C-201/13 – Deckmyn and Vrijheidsfonds URIA.
In the Deckmyn case, the fair balance mandate is referred to, and the Supreme Court found that this was the ‘’limitation which the parodic exploitation of a third-party work is subject to’’. By extension, the court highlighted the Berne Convention’s three-step test as integral to the fair balance mandate and the significance of whether an alleged parody interfered with the normal exploitation of the original work.
In light of the above, the Supreme Court concluded that the Appeal Court was mistaken in its assessment of parody under copyright by imagining requirements that do not exist in the law when assessing parody under copyright and that a fresh evaluation would need to take place for proper determination.
Both jurisdictions present strict, yet different, requirements for works to qualify under the parody exception in relation to copyright. The French court has taken a fairly straightforward and concise approach, relying primarily on domestic laws and when it does reference the CJEU, it does so loosely. On the other hand, the Italian perspective is significantly more complex. The Italian court draws on an array of Italian-specific laws as well as many EU-wide materials, such as the EU Charter, the Berne Convention, the Information Society Directive and the CJEU. Nonetheless, while both jurisdictions draw from EU jurisprudence, they do so to define parody at a domestic level.
The contrasts are also striking. In France, the appeal court found that secondary works must be derived from an original work in order to qualify as parody, whereas the Italian Supreme Court found no requirement for parody to be derivative. Furthermore, while the Italian court held that parody must be critical, the French court held that parody must be humorous. These different interpretations provide an insight as to French and Italian attitudes towards what parody might look like in practice, and the distinct features that define parody in each jurisdiction.
The UK Perspective
In the UK, criticism and parody operate as two separate exceptions to copyright. Although there is no definition of ‘parody’, UK government guidance suggests that parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style or some other target in an exaggerated way. The similarities between the UK view and the French view are strong. However, with the Italian court providing new routes of interpretation, it is worth considering whether the future will see some of these ideas entertained by UK courts.
How can we help?
These judgments also provide a reminder for UK businesses to be aware that their works might be subject to different standards in different jurisdictions, which may be relevant if they intend to distribute materials which they consider meet the exceptions to copyright infringement
If you have any questions about copyright, please do not hesitate to contact a member of our Intellectual Property team and we will be delighted to assist.
This article was co-written by Ussamah Nasar, Trainee Solicitor.