Little Mermaid: Decision of the Supreme Court of Denmark (Højesteret) 17 May 2023 – Case No. BS-24506/2022-HJR; ECLI:DK:HJR:2023:BS0000003218

There exists a parody principle in Danish copyright law that rests on a firm Danish and common Nordic tradition supported by the preparatory works to the Danish Copyright Act and judicial practice. The concept of parody must be understood in accordance with EU law. Even though the right of integrity falls outside the scope of the InfoSoc Directive, there is no basis for giving the parody principle a different scope of application when it comes to the exclusive economic rights under Sec. 2 Danish Copyright Act. Outside the scope of application of Sec. 4(2) there also exists a similar parody principle in terms of content, according to which a parody may constitute an exception to copyright, regardless of whether the parody is very close and whether the parody is directed at the original work itself or at something else. Although Member States have a wide margin of discretion in the balancing exercise, the circumstances of the specific case, including whether the expression in question is of societal importance and to what extent the expression contributes to a debate of public interest, must be taken into account. When assessing whether an expression is of societal importance, consideration may be given to the function of the press, the political nature of the expression, and the artistic freedom of expression. The nature and severity of the sanctions that the infringement gives rise to must be included in the assessment of whether the enforcement of the claimed intellectual property right constitutes a broader interference with freedom of expression than what is necessary in a democratic society. The Danish Marketing Practices Act does not apply to the press’s editorial use of material.