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Summary
On 17 May 2023, the Danish Supreme Court delivered its judgment in a long-running copyright dispute between the holders of the copyright to the famous Danish sculpture, The Little Mermaid, and the editor-in-chief of the Danish national newspaper, Berlingske. The Supreme Court overturned the rulings of the two lower instance courts, and acquitted Berlingske's editor-in-chief of copyright infringements. The landmark judgment has subsequently led to a proposal for amendment of the Danish Copyright Act and has been referenced in other cases where parody and the balancing act between freedom of expression and intellectual property rights ("IP rights") has been a theme. Before delving into the implications of the Supreme Court judgment however, the process preceding it is briefly outlined below.
The facts of the case
On 18 May 2019, the front page of the debate section in the Danish national newspaper, Berlingske, showed a large drawing with the headline 'The Evil in Denmark' ('Ondskaben i Danmark'). It accompanied an article about the shrill tone of the political debate on immigration in Denmark, as opposed to the other Nordic countries, in the lead-up to the parliamentary election in Denmark that same year. The drawing clearly mimicked the distinctive pose of The Little Mermaid created by the Danish artist Edvard Eriksen (1876-1959) in 1913, as well as the sculpture's placement on a rock in the harbour of Copenhagen. However, the heroine from Hans Christian Andersen's tale was shown clutching a shredded Danish flag, her delicate features distorted into the sneering face of a zombie, and in the background, barbed wire was depicted keeping boats with immigrants at bay.
The illustration led the owners of copyright to the sculpture, Edvard Eriksens Arvinger I/S (the heirs), to file a lawsuit against Berlingske's editor-in-chief for infringement of both their exclusive economic rights to exploitation of the artwork, and their moral rights based on the negative context of the article. The heirs also claimed infringement of good marketing practices, through Berlingske's alleged exploitation of the sculpture's fame and national brand value.
Approximately a year later, the scope of the case was expanded to include further alleged infringements by Berlingske. This time through 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 at Aarhus University that demonstrated a correlation between fear of contagion and right-wing political convictions among Danes.
The District Court and High Court rulings
The District Court delivered its ruling on 23 November 2020 finding for the heirs in respect of the claimed infringements with the exception of the marketing law infringement. In so doing, the court emphasized the undeniable and intentional similarity to the original artwork. The District Court further concluded that Berlingske's references to The Little Mermaid did not enjoy protection under the European Convention on Human Rights ("ECHR") Article 10, as the depictions were not necessary to convey the messages of the articles in question.
The decision was appealed to the Eastern High Court, with Berlingske requesting the court to additionally consider whether the drawing constituted a parody, and whether the specific context in which the two illustrations appeared, warranted protection under ECHR Article 10 as they did not refer to the sculpture in its capacity as a protected artwork, but as a symbolic representation of Danish national identity. These additional arguments did not however convince the High Court. On the contrary, in addition to upholding the ruling of the District Court as regards the copyright infringements, the High Court also found that Berlingske's use of the illustrations constituted an infringement of the Danish Marketing Practices Act. Due to the landmark nature of the case, the Danish Appeals Permission Board permitted Berlingske to appeal the High Court's judgment to the Supreme Court.
The High Court's ruling was notable in the sense that it diminished the scope of the non-statutory parody principle under Danish law and shifted the balancing act between freedom of expression and protection of property in favour of rightsholders. Consequently, there was an aura of suspense among the stakeholders leading up to the Supreme Court's judgment. When it was delivered, not only Berlingske, but the entire Danish media world, heaved a collective sigh of relief.
The Supreme Court Judgment
The Supreme Court stated that the Danish non-statutory principle of parody rests on a firm Danish and joint Nordic tradition supported by caselaw and the legislative history behind the Copyright Act. Referencing the European Court of Justice's (CJEU) caselaw in respect of the Infosoc Directive and relying on the legislative history in relation to the implementation of the DSM Directive into Danish law in 2021, the Supreme Court furthermore found that the principle of parody must be interpreted in accordance with EU law. Accordingly, a parody is characterised by fulfilling a purpose that is distinctly different from that of the original work, even where the two share a close likeness, and regardless of whether or not the parody is aimed at the original work or something else entirely. The court further noted that the considerations governing the exception to copyright for parody are closely linked to considerations concerning freedom of expression.
The Supreme Court found that the drawing clearly constituted a caricatured version of The Little Mermaid as a national symbol. For this reason, and also taking into account the special considerations afforded to the press when balancing freedom of expression against protection of copyright, the drawing did not infringe the copyright to the sculpture.
Stressing the significance of the freedom of expression of the press and the balancing act that must be carried out, even when the representation in question does not constitute a parody, the Supreme Court furthermore dismissed the infringement claim related to the photograph of the sculpture wearing a face mask. The Supreme Court stressed that the photograph was used in the context of an article on a topic of general public interest, and that the symbolic rather than artistic value of the sculpture was decisive.
Finally, the Supreme Court summarily dismissed the claim related to infringement of the Danish Marketing Practices Act, noting merely that the act only applies to the commercial activities of Berlingske, and not its editorial content.
Key take-aways from the case
The reasoning of the Supreme Court regarding the balancing of the competing interests at stake went beyond the balancing act in the specific case and outlined some general guiding principles when balancing freedom of expression of the press against the interests of rightsholders. Specifically the court noted that:
"When determining whether an expression holds societal significance, emphasis must be placed on the importance of the functioning of the press, the political content of the expression, and the right to artistic freedom. Furthermore, the nature and severity of the sanctions that the infringement gives rise to must be included in the assessment of whether the enforcement of the invoked IP right results in an interference with the freedom of expression that goes beyond what is necessary in a democratic society."
As such, the Supreme Court's judgment also indicates that very strict sanctions for infringement of IP rights may in certain cases have an inappropriate "chilling effect" on freedom of expression.
Subsequent legislative developments
The Supreme Court's judgment authoritatively confirmed the existence of an exception for parody under Danish copyright law. In addition, the case led to a proposal to turn the non-statutory principle into a statutory provision in the Danish Copyright Act in order to further clarify the scope of the rule for the benefit of both users and rightsholders.
Consequently, in December 2023 a preliminary bill was proposed, which suggests explicitly implementing Article 5(3)(k) of the Infosoc Directive (2001/29/EC) in the Danish Copyright Act, thereby establishing caricature, parody, or pastiche as exceptions to the economic rights of rightsholders. This seems like an obvious choice considering the findings of the Supreme Court, and since the decision not to implement this facultative provision when implementing the Infosoc Directive in 2002, was one of the root causes of the different outcome of the judgment of the High Court. It follows from the comments to the bill that the exception is to be interpreted in line with Article 5(5) of the Infosoc Directive, which stipulates that the exception shall only be applied in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightsholder. As such, the extent of the exception is limited by the so-called "three-step test".
Application of the Supreme Court's judgment in later cases
The reasoning by the Supreme Court in the case concerning the Little Mermaid has since been referenced in other cases. In a recent case, Coop Danmark A/S ("Coop"), which operates several retail store chains in Denmark, obtained an injunction against Artpusher Gallery ApS and its director due to the latter's exploitation of Coop's trademarks "Coop" and "Irma" as well as figurative trademarks depicting the so-called 'Irmapigen' (Irma Girl).
The stylised blond 'Irma Girl' with her distinctive blue and white dress is a well-known Danish trademark for the recently closed retail store chain, Irma. The defendants, an art gallery and its owner and director, had produced and sold humorous and provocative art worksand objects depicting the Irma Girl in a variety of different situations. In one of them, she is smoking a cigarette and graffitiing the word "Fuck" above the Coop trademark. Coop based its claim for an injunction on infringement of both trademark rights, copyright, and marketing practices. Like The Little Mermaid, the Irma Girl is well-known and well-loved and holds significant symbolic value. It, therefore, seemed almost inevitable that the defendants should call upon the Maritime and Commercial High Court, to apply the Supreme Court's reasoning in the case.
The case was ultimately decided solely based on trademark infringement, and the arguments related to the parody principle were therefore not specifically considered. However, the Maritime and Commercial High Court did balance the defendant's freedom of expression against Coop's trademark rights. In this regard, the court reasoned that in light of the commercial aim and significant scale of the exploitation, the societal relevance of some of the motives, could not justify Art Pusher's exploitation when weighed against Coop's interests as owner of the trademarks.
Unlike in the case concerning The Little Mermaid where the original work was used mainly as a national symbol, the Irma Girl was used primarily in its capacity as a trademark. If the injunction is upheld in the Eastern High Court, to which it has been appealed, it must be surmised that where the exploitation is primarily commercial and directly linked to the basis of the IP protection, the rights, and interests of the rightsholder will likely outweigh the freedom of expression of the infringing party.
The differing results of the two cases highlight the importance of the balancing of interests that the courts must carry out based on the facts of each individual case whenever freedom of expression is on a collision course with IP rights. As such, a thorough balancing of interests may be the key to a happily ever after for freedom of expression and IP rights.
Disclaimers: Martin Dahl Pedersen represented Tom Jensen, editor-in-chief of Berlingske, in the Supreme Court case.
Frank Bøggild (Partner at Kromann Reumert) represents Coop in the case against Art Pusher.
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
Happily Ever After?
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 specializes 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.
In May 2023, the Danish Supreme Court delivered its judgment in a landmark case concerning alleged infringement of the copyright to the famous Danish sculpture The Little Mermaid. The outcome of the case has clarified the scope of parody as an exception to copyright protection under Danish law and highlighted the balancing act to be carried out in cases where freedom of expression is at odds with intellectual property rights. Here we discuss the outcome of the case, and its implications for subsequent caselaw and legislative developments.
