May 05, 2023

A French court of Appeal looks at the conditions under which a sculpture inspired by Tintin can be considered as a parody under copyright law

FR – Subject matter of copyright protection (fictional character) – Exception for parody

Court d’appel d’Aix-en-Provence – Chambre 1-2, Peppone v Tintinimaginatio, No 22/04302 [24 November 2022]

The Court of Appeal of Aix-en-Provence assessed the conditions of the parody exception in relation to a sculpture inspired by the fictional character Tintin. The Court found that, in order for a work to fall under this exception, it must recall the pre-existing artwork and contain clear differences that make confusion impossible. The work must also manifest an element of humour and make a mockery of the original work, conditions that were deemed not fulfilled in the case. The Court ruled that paying tribute to Tintin, with only aesthetic variations, did not qualify as a parody, but rather constituted a misappropriation of notoriety for a commercial purpose.

***

The defendant is a contemporary artist who creates sculptures representing, among others, pop-culture figures such as Snoopy, Popeye and Mickey Mouse, using the techniques of silk-screen printing and marouflage. Since 2017, Peppone has been creating and commercialising sculptures and busts inspired by the fictional character Tintin and the rocket from the well-known album Objective lune by the Belgian cartoonist Georges Remi, known as Hergé.

In 2019, Tintinimaginatio (previously SA Moulinsart) and M. Hergé’s sole heir (the plaintiffs), filed legal action against the artist for copyright infringement before the Court of Marseille. The artist invoked the parody exception. On 17 June 2021, the Court of First Instance granted the plaintiffs’ claim.

The case went to appeal, where the Court first assessed the originality of the fictional character and ruled that Tintin qualified for copyright protection. Firstly, the Court recalled the distinction between originality and novelty, recalling that the notion of anteriority is irrelevant under copyright law. It held that Tintin was a ‘typical’ character, whose graphical depiction was characterised by unconstrained aesthetic choices, such as his round face topped by a raised quiff, round eyes, small straight nose, and thin or round mouth. All these are essential characteristics that allow him to be identified at first glance. They reflect his author’s personal imprint and, therefore, are original.

Secondly, the Court proceeded to analyse the infringement and assess whether the parody exception could apply. It noted that the exception applied under two main conditions: first, a parody must recall the existing artwork and display perceptible differences from it so that no confusion is possible; second, the work must also display an element of humour and mock the original work (03/09/2014, C‑201/13, Deckmyn and Vrijheidsfonds, EU:C:2014:2132).

The Court found that, in this case, there was only an aesthetic variation of the work, without any specific intellectual contribution and/or interpellation, nor humour or even derision. The defendant’s work did not alter the nature and/or significance of the original work. Confusion was therefore possible. The Court also relied on the artist’s defence – which, far from demonstrating his intellectual contribution or humorous input, merely contended that the sculpture was his tribute to Hergé’s work. This, together with the fact that he was using the titles of the Tintin albums, reinforced the Court’s conviction that the defendant’s work did not qualify as a parody, but rather constituted a misappropriation of notoriety for a commercial purpose.

The Court therefore confirmed the judgment of the Court of First Instance, ordering payment of EUR 114 157 in damages and legal costs in favour of the plaintiffs.

The text of the judgment (in French) is available here.