Make Way for the Parody of Nijntje
A discussion of the judgment of the Amsterdam Court of Appeal
of 13 September 2011, LJN BS 7825
In a case of principle the Amsterdam Court of Appeal
has ruled on 13 September 2011 that parodies of
Nijntje are allowed. The case concerned, inter alia, the
following parody:
Earlier, the court in preliminary relief already allowed five
of the seven illustrations presented. The Court of Appeal has
stretched the boundaries even further: it considers all pictures
objected against by Dick Bruna and his company Mercis to be
permissible. The picture shown above (‘nijn-eleven’) was not
allowed on the basis of the 2009 judgment in preliminary relief
proceedings, but the Court of Appeal now ruled that also this
parody has an apparent humoristic and ironizing intention. It is
not necessary that everybody thinks it is funny. Therefore, this
picture is allowed on the Internet too.
The Court of Appeal has considered:“The intention of these
pictures, that in combination with the accompanying texts contrast
sharply with the original figure of Nijntje, is unmistakably to
make people laugh, which does not alter the fact that not everybody
by far will find the challenged pictures equally funny or
appropriate. This case concerns parodying use, because the pictures
are imitations in a somewhat modified form as a result of which the
Nijntje figure is made the object of laughter and as a result of
which the purport of the original work is being changed in a
humoristic, mostly ironic manner. This contrast is strengthened by
the combination with the accompanying texts. Where Dick Bruna's
texts are pre-eminently child-friendly and non-violent, the texts
with the challenged pictures are mostly rude and aggressive.
(…)
For instance, successively Nijntje is shown in connection with a
hardcore party, as stoned as a pebble, a trance homosexual, pep and
hakkûh. This is obvious parodying use in which the work itself is
aimed at and the irony is laid on thickly. This use is, regarded
objectively, in agreement with what is reasonably permissible
according to the rules in current social and economic life, also if
it is taken into consideration that Bruna as Nijntje's
spiritual father is offended by it (…).”
The Court of Appeal has furthermore argued that not every
association presented as ‘humor’ of Nijntje with drugs, sex,
terrorism, racism, or other subject matters that cannot be regarded
as ‘decent’ will be a permissible parody. There are boundaries. The
freedom of parodying use is limited by reasonableness and the rules
of social and economic life. It must be adjudicated when the
occasion arises whether this limitation has been observed. In this
case, the Court of Appeal has deemed that these boundaries were not
exceeded. And in the event of a successful reliance on the
exception of parody no reliance can be made anymore on the moral
rights in order to still prohibit the parody.
The above picture has taken sufficient distance from the
original in order for the parody not to be regarded as an
indiscriminate copy, while maintaining the recognizability of the
original necessary for a parody. With regard to the obvious
humoristic and ironizing intention of the parody, according to the
Court of Appeal, here too it is not necessary that everybody thinks
it is funny.
The Court of Appeal has ruled that there is no question of
copyright infringement, because the pictures fall under the
exception of parody. In addition, Mercis and Bruna had also relied
on trademark law. The Court of Appeal has also denied this
reliance. Because of the humoristic intention, the lack of
competition motives, the distance kept to the trademarks and the
lack of likelihood of confusion there is a valid reason.
The exception of parody in copyright law is a relatively new
statutory provision. Until now, there was hardly any case law in
this respect. This judgment of the Court of Appeal provides clear
guidelines that will give practice considerable room. All in all, a
fine victory for the freedom of speech.
Otto Volgenant has dealt with this case for Punt.nl, the party
that was sued by Bruna/Mercis for publishing the parodies of
Nijntje on the Internet.