On 8 April 2019, the Enterprise Court (ondernemingsrechtbank / tribunal de l’entreprise) (the “Court”) held that the use by Greenpeace of a cartoon character named “Maya the Bee” infringed the copyright exploitation right of Studio 100, a Belgian production company in the entertainment sector, as well as the moral rights of Waldemar Bonsels Stiftung (“WBS“), a company governed by German law.
The fictional character, Maya the Bee, was created and described in 1912 by Mr. Waldemar Bonsels in his book ‘The Adventures of Maya the Bee’. WBS exercises Mr. Bonsels’ moral rights in his works. Studio 100 commercialises Maya the Bee movies and cartoon series in the Benelux. The company’s general activities focus on children’s entertainment. Studio 100 licenses the image and rights in Maya the Bee for various (merchandising) products, including poultry sausage, which indirectly led to the present dispute.
In May 2018, Greenpeace launched a video campaign in which Maya the Bee advertised “Maya the Bee cigarettes”. With the campaign, the environmental organisation Greenpeace intended to raise awareness of meat consumption and its adverse effects on the environment and on individual health. It wanted to denounce Studio 100 for promoting products that are bad for children’s health by licensing Maya the Bee’s image for its meat products.
Before the Court, Studio 100 claimed that the “aggressive campaign” of Greenpeace infringed its copyright and stated that it could not tolerate its characters being abused or associated with tobacco products in any way. In its defence, Greenpeace argued that its video campaign was a parody allowed under copyright law.
For the assessment of the parody argument, the Court referred to the case law of the Court of Justice of the European Union (“ECJ”), according to which the essential characteristics of a parody are that (i) it evokes an existing work, while being noticeably different from it and (ii) it constitutes an expression of humour or mockery. On 3 September 2014, the ECJ handed down its judgment in Case C-201/13, Deckmyn en Vrijheidsfonds in which it gave guidance regarding the parody exception to copyright under Article 5.3(k) of Directive 2001/29/EC (“InfoSoc Directive”) (See, this Newsletter, Volume 2014, No. 9, available at www.vbb.com).
The ECJ had also held that it is not required for the parody to: (i) mock the copyrighted work; (ii) be an original work of art; (iii) be attributed to someone else than the author of the copyrighted work; or (iv) mention the source of the original work. Finally, the ECJ added that a fair balance had to be struck between the right of the author of the copyrighted work and the freedom of expression on which the parody relies.
In this case, the Court found the video campaign to present the essential characteristics of a parody under copyright law. However, it also reached the conclusion that the parody disproportionately affected the reputation and rights of Studio 100. Greenpeace opted for a format in which an indisputably harmful product (“real cigarettes”) is advertised whose sale to minors in Belgium is prohibited by law and for which advertising is almost completely prohibited.
Also, the campaign had spread via a mass medium, such as the Internet, which took insufficient account of the evident reach of young children, even though that was not the target audience. Young children were directly affected by a campaign which caused most children and some adults to associate their favourite character with smoking.
As regards the moral rights of WBS, the Court found that the use of the image of Maya the Bee in association with a particularly harmful product such as cigarettes (that is prohibited for children) is a contextual change that detracts from the child-friendly character associated with it. This is a violation of the moral rights associated with Mr. Waldemar Bonsels’ work.
According to the Court, the parody exception which Greenpeace relied on does not apply to an infringement of moral rights. The Court ordered Greenpeace to stop the campaign subject to a penalty of EUR 2,500 per day and per infringement with a ceiling of EUR 1 million.