No Time to Laugh – The Parody Defence is Unavailable under Hungarian Copyright Law
by Péter Mezei
Hungary is one of those EU Member States that did not implement the parody exception of the InfoSoc Directive. In the first ever court of appeals level decision on parody (reference No 8.Pf.20.424/2019/5), the Municipal Court of Appeals has confirmed that the parody defence is unavailable under Hungarian copyright law due to the lack of an express statutory recognition.
The plaintiff holds the IP rights to the Superman character. The defendant (HVG) is the publisher of a weekly journal. The 18 September 2016 issue was published with an image imitating Superman’s ‘S’ logo as a dollar sign ($) and the character had a big fat belly popping out of his shirt. The title of the image was ‘Strawman – Sham Billionaires and True Wealth’ (‘STRÓMAN – Álmilliárdosok és valódi vagyonok’). This was a reference to the article that discussed the enrichment of businessmen, who were closely connected to the innermost political circles. The plaintiff claimed that the use of the Superman character was an unauthorized adaptation of the Superman character.
The Municipal Court of Appeals upheld the trial court decision by confirming that the original work’s main characteristics remained noticeable, while the secondary work differed from the original one. Those differences were not aimed at distinguishing the two works, but rather sought to create a contraposition of the two works to reach critical, humorous effects. The court concluded that the cover image lacked any individual, independent meaning, and failed to keep the necessary distance from the source material. The court also noted that the defendant would be unable to escape liability based on parody, as the Hungarian Copyright Act includes no such exception.
The court seemed to misinterpret parody as a concept. On the one hand, it appeared to misunderstand the purpose of the cover image. HVG did not dispute the message of the Superman character, but rather criticized corruption. On the other hand, the court appeared to interpret the obligation to keep distance from the original work and the requirement of independent, individual meaning in a pure formalistic sense: are the two images visually different? This logic is flawed. First, it unnecessarily limits ‘parody’ to ‘style parody’, and so it empties the concept of parody as ‘style’ has never been protected by copyright. Second, it disregarded the CJEU’s ruling in Deckmyn. There, the CJEU favoured ‘parody with’ over ‘parody of’. HVG’s cover image, however, seems to fully comply with the ‘parody with’ concept. Based on the very images at issue in Deckmyn, we can also argue that “noticeably different” shall not be limited to formal differences; it also includes noticeably different meanings.
The ruling itself is nevertheless correct in its outcome as the parody exception is not codified in Hungary. Courts are not in a position to introduce new laws either. This means that there is no way under the effective Hungarian laws to publish a work that evokes an existing work while having a noticeably different meaning from it in order to constitute an expression of humour or mockery.
All these concerns might be the past soon though. Directive 2019/790 on copyright in the Digital Single Market (CDSM-Directive) obliges Member States to mandatorily implement the parody, caricature and pastiche exception with respect to user-generated content that fall under the scope of Art. 17(7) second sentence (b) therein. The draft proposal for the implementation of the CDSM-Directive proposes to introduce a parody exception with a general scope into Hungarian law.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]