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Setting the Scene
New York City has the Statue of Liberty, Rio has the Christo Redentor, and Copenhagen has the Little Mermaid; a small statue in the harbour of Copenhagen, whose modest size and serene appearance belies the drama it has frequently proved capable of stirring.
It's status as a significant national symbol has made the mermaid a frequent victim of vandalism, a canvas for political protest, and most recently the focus of a copyright dispute currently pending before the Danish Supreme Court, between the heirs of Edvard Eriksen (1876-1959), the sculptor who created her, and Tom Jensen, Editor in Chief of Danish national newspaper, Berlingske. The case is far from the first legal dispute concerning infringement of the copyright to the statue, but it is likely the most significant since the status of parody as a limitation to copyright protection is at stake.
While not explicitly included in the Danish Copyright Act, it has been widely accepted in Danish legal theory and caselaw that copyright protection was limited by a general non-statutory parody exception, representing a particular expression of the balancing act between freedom of expression on the one hand, and copyright protection on the other.
The implementation of the DSM directive (Copyright in the Digital Single Market - EU 2019/790) article 17(7)(b) introduced to The Danish Copyright Act a specific exemption for caricature, parody or pastiche for content shared on online content-sharing services. The preparatory works for the Danish implementing act (no 1121 of 4 June 2021) reiterated the presumption of an equivalent, non-statutory general exception to the rights of the copyright holder. This presumption may now require profound re-evaluation after the Eastern High Court delivered its judgment in the present case.
Background and Facts of the Case
The statue of The Little Mermaid was created by the Danish sculptor Edvard Eriksen in 1913 at the behest of Carlsberg Brewery founder, Carl Jacobsen. Jacobsen, who commissioned the artwork as a gift to the city of Copenhagen, dictated its placement on a rock in the water, and even that the appearance of the mermaid should be modelled on Danish ballet dancer Ellen Price de Plane, whose performance in a ballet staging of Hans Christian Andersen's fairy tale had mesmerized the brewer. The copyright to the statue expires in 1929.
The origin of the present case is a drawing published in Berlingske on 18 May 2019, illustrating an article titled 'The Evil in Denmark' ('Ondskaben i Danmark'), about the harsh tone in the Danish immigration debate. The drawing unmistakably references The Little Mermaid, replicating her posture, placement, and her characteristic half human legs, half fishtail lower body. However, the mermaid in the drawing is also markedly different from the statue, having been equipped by the illustrator with a torn Danish flag, and the distorted face and vicious sneer of a zombie.
The heirs of Edvard Eriksen filed a lawsuit against Berlingske over the drawing, claiming infringement of both their exclusive economic rights to exploitation of the artwork, and an infringement of their moral rights based on the negative context in which it was used. In addition to copyright infringement the heirs claimed that the use of the artwork breached the general provision on good marketing practises by exploiting The Little Mermaid's brand value and status as a national icon.
After the case was initiated, Berlingske used a photograph of The Little Mermaid wearing a face mask, to illustrate an article titled: 'Afraid of catching Covid? Then you probably vote for the Danish People's Party' ('Bange for Coronasmitte? Så stemmer du nok på Dansk Folkeparti'), published in April 2020. The article concerned a research project identifying a link between fear of Covid and right-wing voters. The scope of the case was then extended to include infringement claims related to the photo.
Parody under Danish law
The Danish Copyright Act dates from 1961. In the preparatory works, the remarks on Section 3 concerning the moral rights of the copyright holder state that the provision is not intended to alter the already established tradition of allowing publication of parodies and travesties.
When implementing the Infosoc Directive (2001/29/EC) in December 2002, the Danish legislator chose not to implement the non-mandatory article 5 (3)(k) regarding exceptions to copyright protection for use for the purpose of caricature, parody, or pastiche by including a statutory exception under the Danish Copyright Act. In the preparatory works for the implementation act, it is merely noted that the legal basis provided by Infosoc Directive (2001/29/EC) was not exploited.
The concept of parody has so far not been defined in Danish legislation or caselaw. However, since the judgment of the ECJ in Deckmyn (C-201/13) in 2014, in which the concept of parody under article 5(3)(k) of the Infosoc Directive is described as an autonomous concept of EU law to be interpreted uniformly throughout the European Union, it has been the general conception among most Danish scholars that the Danish non-statutory parody exception is to be interpreted in accordance with the principles set out in the judgment.
According to Deckmyn, the concept of parody should be interpreted in accordance with its usual meaning in everyday language, which is first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery (paras. 20 and 33). Further the ECJ rejected the notion that the parody must necessarily relate to the original work itself (paras. 21 and 33).
The Judgment of the Eastern High Court
The District Court of Copenhagen delivered its judgment on 23 November 2020 finding for the heirs in respect of the claimed infringements of both economic and moral rights to the artwork. Berlingske appealed the decision to the Eastern High Court, which delivered its judgment on 9 February 2022, upholding the judgment of the District Court, and additionally finding that Berlingske had exploited The Little Mermaid's status and brand in breach of the Danish Marketing Practices Act.
In addition to ordering the payment of DKK 300.000 compensation to the heirs, the judgment reduced the non-statutory parody exemption to practical non-existence by interpreting the decision not to implement article 5 (3) k to constitute an express rejection of parody as an exception to the economic rights of the copyright holder.
As regards the exception for parody and travesty in the preparatory works for the Copyright Act of 1961 the court found firstly that - if anything - it applied to moral rights only, and secondly that the age of the source spoke in favour of a narrow interpretation, limiting the exception to parodies of the copyrighted work itself, which had not been the purpose of the two illustrations. As such, the court also diverted from the EU law definition of parody expressed in Deckmyn. The court expressly slighted the explanatory notes by the Ministry of Culture on caricature, parody, or pastiche in relation to the implementation of the DSM Directive.
As for the consideration of the fundamental rights of freedom of expression on the one hand, and protection of property on the other, The Eastern High Court only summarily touched upon the balancing act to be carried out in each individual case under the relevant provisions in both the EU Charter and the ECHR. The court justified the omission by stating that considerations concerning freedom of expression and information were already exhaustively accounted for in the statutory exceptions to copyright protection under the Danish Copyright Act, none of which applied to the present case. The court further stressed that it had not been necessary for Berlingske to use The Little Mermaid to convey to its readers the points about right wing nationalism set forth in the two articles.
What may be Expected from the Supreme Court Judgment
It is now up to the Supreme Court to determine the fate of parody as a non-statutory exception to copyright protection under Danish law, and to possibly answer some of the questions, which the Eastern High Court's judgment raises.
Firstly, in dismissing a non-statutory exception to the economic rights of the copyright holder, a schism is created between the traditional press on the one hand, and online content-sharing services on the other, with the latter having been granted a wider scope for freedom of expression than the former with the implementation of the DSM Directive. The Eastern High Court judgment offers no explanation for this somewhat odd incongruence, which the Supreme Court may elaborate on.
Secondly, the judgment begs the question whether the balancing act to be carried out between freedom of expression and protection of property can be exhaustively accounted for in legislation, thereby dispensing with the need for a concrete assessment on the merits of the case. An interpretation to this effect would essentially mean that the court would not be required to take into account Berlingske's use of The Little Mermaid not as a protected artwork, but as a symbol of nationalism, for the purpose of conveying journalistic content of general public interest.
Thirdly, the judgment raises the question whether the use of illustrations as done by Berlingske constitutes a breach of the Danish Marketing Practices Act, as this would represent a diversion from the current practice of considering such use by the media as purely editorial use, rather than illegal commercial use.
If the Eastern High Court's views on the case are confirmed by the Supreme Court, this may have a significant impact on the means of expression available to Danish media.
Disclaimer: Martin Dahl Pedersen represents Tom Jensen, Editor in Chief of Berlingske, in the Supreme Court case.
Martin Dahl Pedersen works within the IP, Media and Entertainment Group of Kromann Reumert, a leading law firm in Denmark. Mr Pedersen became a partner there in 2002. He has many years' experience advising clients in the broad media and entertainment field, partic edia conglomerate Aller Media in a controversial principle matter on the protection of journalistic sources in a case where Aller Media is facing criminal charges for abuse of information on celebrities' credit card transactions.
Biographies
DENMARK
The Little Mermaid: Big Copyright Questions
Written by Martin Dahl Pedersen & Anne-Sophie Kofoed Rasmussen,
Kromann Reumert Law Firm
Martin Dahl Pedersen
Anne-Sophie Kofoed Rasmussen
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Middle East and North Africa
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Anne-Sophie Kofoed Rasmussen specializss in intellectual property law and offers advice across the sports, media, and entertainment industries. She joined Kromann Reumert's team for Sports, Media, and Entertainment in 2022 as an assistant attorney. Ms Rasmussen also has a degree in art history from Goldsmiths College, University of London, and worked as a curator of modern and contemporary art prior to becoming a lawyer. She assists Martin Dahl Pedersen on several matters related to intellectual property and media law, including in relation to pending court cases and disputes concerning rights and contracts related to film production. She also teaches a course on fundamental rights at the University of Copenhagen.
On 10 May 2023, the Supreme Court of Denmark will hear a case regarding alleged infringements of the copyright to the the famous Danish statue, The Little Mermaid, centred on two illustrations published by the Danish national wide newspaper Berlingske. The outcome of the case is eagerly awaited by stakeholders, in particular the Danish media industry, due to the questions it raises of of parody as an exception to copyright protection under Danish Law, and the role of freedom of expression as a guiding principle when assessing possible copyright infringements.
