Billions of Blue Blistering Barnacles! French Court of Appeal says humour needs a specific humorous intent for copyright use

Dr Sabine Jacques (University of Liverpool)

Figure 1 Tintin chez Hooper2 (Marabout’s use)

Mr. Marabout is a painter known for his works that blend visual art with the “strip art” movement, where the artist incorporates comic strip cultural references to create new pieces. His artistic approach often employs pop irony, as seen in his series where he juxtaposes the world of Tintin with that of fine art, specifically in the style of Edward Hopper. Hopper’s voyeuristic and expectant gaze is used to reimagine Tintin’s sentimental life in a collection of 24 paintings, which were exhibited and sold on Marabout’s website. In response, Hergé’s estate and right-holders initiated legal proceedings against Marabout, alleging copyright infringement and parasitism.

Initially, the tribunal of first instance ruled in favour of Marabout, applying the parody exception under Article 122-5 of the French Intellectual Property Code. However, the Court of Appeal of Rennes reversed this decision, setting a significant precedent.

Understanding Copyright and the Parody Exception

Copyright law grants authors exclusive rights to their original works, including the right to authorise their reproduction. Any imitation of Tintin, therefore, constitutes reproduction and requires prior authorisation unless a specific defence, such as parody, applies. Under French law, the parody defence allows the reproduction of copyright-protected works without authorisation, provided the parody adheres to “the rules of the genre”. This rule injects flexibility into the legal assessment, requiring courts to determine whether a parody respects the genre’s boundaries.

The Court’s Restrictive Interpretation

The Court of Appeal emphasised that the parody exception must be interpreted restrictively (para 52), signalling a potential imbalance between right-holders’ property rights and users’ freedom of expression. This approach contrasts with the European Court of Justice’s rulings in cases like C-5/08 Infopaq, C-435/12 ACI Adam, and C-201/13 Deckmyn, which requires a strict interpretation that respects the effectiveness and purpose of exceptions.

Focusing on the humorous function of parodies, the Court required an “evident humorous intent, preferably with a certain intensity” (para 54). This requirement, while aiming for clarity, could potentially limit artistic freedom. It also seemingly contradicts the CJEU’s decision in Deckmyn, which supports more biting forms of humour by requiring only an expression of humour or mockery (at 20).

Divergence from Tribunal’s Findings

The tribunal had previously found that Marabout’s works displayed the necessary humorous intent through the incongruity between Hopper’s typically sober style and the absence of female characters alongside Tintin, except for the caricature of Bianca Castafiore and Irma. This invited viewers to imagine a humorous continuation of the scenes. However, the Court of Appeal viewed Marabout’s works less as a parody and more as a tribute to Hergé. The depiction of Tintin in various adult situations (e.g., drinking beer, having a tattoo, smoking) was seen as an unplanned humorous effect rather than a deliberate parody (para 60).

Proportionality and Artistic Freedom

The Court also assessed whether limiting artistic freedom in this case was proportionate and necessary. Marabout intended to provoke public reflection on Tintin as an adult facing human challenges. However, the Court found this personal motivation insufficient to justify overriding copyright principles, as it did not serve a public interest goal (para 68).

Conclusion

The Court of Appeal’s decision marks a significant development in the interpretation of parody within French copyright law. By demanding a clear and intense humorous intent, the ruling potentially narrows the scope of what can be considered a parody. This case underscores the ongoing tension between protecting intellectual property rights and preserving artistic freedom, a balance that continues to evolve within the legal landscape.