Marabout would likely argue that his paintings imitate Hergé’s work, but are noticeably different from it, for humorous effect. However, lawyers for Marabout would likely counter this by arguing that the exception allows a reference to a copyright work - in essence, the ability to build upon it – and that this is precisely what Marabout has done by taking the character and depicting him in new settings and situations.
THE ADVENTURES OF TINTIN BY HERGÉ SERIES
In this case, Moulinsart would likely argue that Marabout has used a substantial part of Hergé’s original work by incorporating Hergé’s eponymous hero as the main character in his series of paintings. The court also highlighted the need to strike a fair balance between the rights holders of the original work, and the freedom of expression of the maker of the parody.įair dealing is a notoriously grey area of copyright law. In the leading EU judgment on parody ( Deckmyn and another v Vandersteen and others, Case C-201/13), the ECJ indicated that the essential characteristics of parody are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. whether the parody will be harmful to the reputation of the rights holder or creator of the original work.Usually only part of a work may be used when creating the parody. whether the amount of the work taken is reasonable and appropriate, and if it is necessary to use the amount that was taken.If a use of a work acts as a substitute for it, thereby causing the owner to lose revenue, then it is not likely to be fair. whether using the work affects the market for the original work.‘Fair dealing’ is assessed globally, and some of the factors that may be considered include: However, there is no statutory definition of the term ‘fair dealing’ – so, what is considered to be fair dealing will differ in each case depending on all the circumstances. There is some guidance on use that would typically fall within the exception (see,for example, the UK Intellectual Property Office’s comments on this issue). This exception means that, in principle, it is possible to use copyright-protected material without having to obtain permission from the rights holders to do so, but only to the extent that such use can be considered ‘fair dealing’. While we monitor the progress of the case, we can contemplate how these issues might be considered under UK law.Įxception to copyright infringement under UK law for the purpose of caricature, parody or pasticheĪs set out in an earlier article, under UK law there is a ‘fair dealing’ exception to copyright infringement for the purpose of caricature, parody or pastiche. From recent statements on its website, it appears that Moulinsart intends to appeal on the basis that (it considers) Marabout’s paintings go far beyond the parody exception to copyright infringement and are “adaptations (or appropriations) of Hergé's work that do not have the character of a legal parody”.
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Moulinsart declined to comment at the time, but has a month to appeal the decision. For justice, this humour resides in the quirky character which consists in mixing the universes of Tintin and the American painter Edward Hopper,” Marabout’s lawyer commented. “The court recognized the parody exception and the humorous intention expressed by my client. In its judgment on, the Court of Rennes found in Marabout’s favour, rejecting Moulinsart’s complaint for copyright infringement and infringement of moral rights. He pointed to a “ conflict between copyright and freedom of expression and creation”, and asked “ Does an artist have the right to wonder about Tintin’s sex life?” and “ What about artistic freedom?” In his defence, Marabout’s lawyer claimed the paintings are parody. A lawyer for the company added that Hergé, had “explained his choice not to involve women in his work, because he found that they are rarely comic elements”.
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Moulinsart accused Marabout of reproducing and adapting the world of Tintin without consent, arguing that “taking advantage of the reputation of a character to immerse him in an erotic universe has nothing to do with humour”. The result is an entertaining mash-up however, Moulinsart does not see it that way. Xavier Marabout’s works depict Tintin in a series of romantic adventures set against backdrops based on the paintings of American artist, Edward Hopper. A French artist who was sued for copyright infringement over his canvases featuring Tintin (the protagonist of The Adventures of Tintin comic series originally created by late Belgian cartoonist Hergé) has won the first round in the French courts against Moulinsart, the company representing Hergé’s estate (as reported in the Guardian).