Ip and Art: an International Perspective

• Jurisdiction: European Union
• Citation: Vol. 42 No. 4
• Publication year: 2017
• Author: Cristina Manasse
• topic: Intellectual Property,Copyright law

IP and Art: An International Perspective

Cristina Manasse

Manasse Studio Legale, Milan

THE PARODY DEFENSE IN THE EUROPEAN UNION

In Belgium, a painting by a well-known artist painted a sort of "portrait" that looked substantially like a photograph and the photographer sued. The painter claimed a defense of "parody," permissible under Belgian and EU law. He lost.¹

What Happened?

In 2010, the Flemish photo journalist, Katrijn van Giels, photographed Jean-Marie Dedecker, a controversial Belgian politician, for the newspaper De Standaard. The next year, Luc Tuymans, one of the best-known painters in Europe, created and sold the painting, A Belgian Politician. Van Giels was surprised that the painting was more than "similar" to her photograph; in her view, it was very nearly identical. She filed suit. The dispute triggered a larger discussion about copyright, artistic expression, plagiarism and the defense of parody.

The similarities between the two works were not in doubt. Both works feature the top of the politician's head; both works are cropped slightly below the nose; both works portrayed the same facial expression; and both works used the same backdrop.

Tuymans admitted that he used Van Giel's work for inspiration, which is not surprising, given his reputation for sources. However, Tuymans claimed that his work differed because, for example, his painting exaggerates Dedecker's sweaty brow. Said his lawyer: "The format and colour contrast are different, so that no confusion could be possible" As for parody, his defense rested on a claim of an expression of irony and criticism of the imagery of politics. Therefore, it is only natural that Tuymans, like many other contemporary artists seeking ironic commentary of modern life, would appropriate existing images.

Some commentators defended Tuymans's work because of the differences between the two works, such as colors, varied balance of shadows/highlights and the scale. For others, Tuymans' work was in fact a reproduction, but Tuymans' painting was protected because the two artworks were different kinds of objects on different media. But the idea of "a different medium, different context" does not excuse infringement.

The Court Considers Parody

The Belgian court relied on both Belgian and EU law. A provision of Belgian law expressly admits parody:²

"Once a work has been lawfully published, its author may not prohibit:

[...]

6. caricature, parody and pastiche, observing fair practice;

That language begs the question of the...