The Story of Saint-Tin and Tintin: The Life of a Parody in a World of Copyrights.
In 2009, a decision by the Trial Court of Evry, a suburban city near Paris, held that the “Adventures of Saint-Tin and his Friend Lou” was a protectable parody of the “Adventures of Tintin and Milou.” The court had an occasion to decide on an issue previously raised in a dispute between France and the United States. One must know that Tintin is a cartoon character with which every European child has grown. Tintin is always accompanied with his dog and best friend Milou, and has been on the moon, has slept on a desert mushroom-like island, and has hung out in Tibet. The publisher of the “Adventures of Tintin” saw in the mocking “Adventures of Saint-Tin” an infringement of his copyright. To what extent should a copyrighted work be protected from parodies?
In France, as in the United States, copyrights are not absolute and other considerations, such as freedom of expression, may prevail over the copyright holder’s interest. In both systems, therefore, exceptions have been set out to encompass those considerations. The French legal system strictly circumcised these exceptions in section L. 122-5 of the Code de la Propriété Intellectuelle, thus supported an idea of judicial security. On the other hand, American courts and Congress based limitations to the protection of copyrighted work on the concept of fair use, thereby allowing for a more flexible approach to these exceptions. Both systems recognize that a parody must not alter a normal exploitation of the original work, and must have a definite purpose. But if the two systems arrive at a similar conclusion, the justifications differ.
In the United States, a parody will not infringe a copyright holder’s interests when the parody specifically targets the original work. Richard A. Posner, When is Parody Fair Use? 21 J. Legal Stud. 67 (1992). When a parody is used as weapon to comment or criticized a third piece of work, the parody is considered as an infringement of a copyrighted work. Id. at 71. The French jurisprudence, of which the Saint-Tin decision is an example, allows parody as long as the parody does not ridicule the original work or the original author’s personality. US legal scholars have seen an economic justification in the admission of a parody defense. Robert P. Merges, for example, assumes that the parody defense should be admitted when “there is a clear market failure for parody licenses.” Robert P. Merges, Are You Making Fun of Me? Notes on the Market Failure and the Parody Defense in Copyright, 21 AIPLA Q.J. 305 (1993).
So a parody is not a copyright infringement in the US legal system when it serves an economic purpose benefiting society as a whole. The utilitarian justification is intertwined with the concept of freedom of expression when society will benefit from an introduction of parodies on the market. In France, freedom of expression and societal benefit are not determined on an economic analysis. A much more subjective approach is considered through the propriety and moral rights of the original author. However, both justifications seem to be served in the opinion of the French trial court of Evry. The “Adventures of Saint-Tin” do not infringe on copyrights over Tintin because the parody is not copying Tintin. The titles, covers, characters bear a certain resemblance, but this resemblance serves a different kind of humor. Confusion between the two works is impossible, says the court, and therefore there is no infringement. But if there is no confusion, then the introduction on the market of the “Adventures of Saint-Tin” brings an economic plus-value on the market. Similarly, if no confusion is possible, the “Adventures of Saint-Tin” cannot injure the “Adventures of Tintin” nor Tintin’ s author’s personality. Further, the French decision held that the parody’s publisher could still be liable if the publisher had purposely put itself in the “trail” of the original work, thereby profiting from the original work’s notoriety.