Droit de la Propriété Intellectuelle | La liberté d'expression et de création face au droit d'auteur. Tintin et sa vie parallèle imaginée – Atteinte aux droits d'auteur ou Droit de parodier ?

Droit de la Propriété Intellectuelle | La liberté d'expression et de création face au droit d'auteur. Tintin et sa vie parallèle imaginée – Atteinte aux droits d'auteur ou Droit de parodier ?

Taxi pour noctambules – 2014 – Marabout

Tintin, Snowy, Captain Haddock, Thomson and Thomson, Professor Calculus, Bianca Castafiore. These characters belong to the international and intergenerational cultural domain. The general public knows both them and their creator, Hergé.

Their renown is well established.

There is no doubt as to the fact that they are protected by copyright.

Is it possible to take these creations and integrate them into a separate work of a different genre and tone without prior authorisation from the beneficiaries of such copyright?

This is the question that Rennes Court had to answer during a case – amongst others – brought by the company Moulinsart, as holder of the copyright for the use of works by Hergé, in particular, “The Adventures of Tintin“, alongside the universal legatee of Mr Georges REMI, alias Hergé, for infringement of Hergé’s moral rights, and more specifically the violation of the respect and integrity of his work.

The object of the dispute? Works by the artist Xavier Marabout, and more specifically 24 paintings showing Tintin – and other characters from the Tintin albums – in settings taken from works by painter Edouard Hopper in an atmosphere qualified as “erotic” by Hergé’s beneficiaries. For example:

 Nightawks (1942) by Edward Hopper (Art Institute Chicago)

Nightawks (1942) by Edward Hopper (Art Institute Chicago)

The presence of “eroticised” female characters alongside Tintin, in some of the contentious paintings, was one of the main elements in the complaint against the artist Marabout:

Petit café du matin, Marabout, 2016

Petit café du matin, Marabout, 2016

In his defence, in substance, the artist pleaded the exception for the purposes of parody, as provided for in Article L. 122-5 of the French Intellectual Property Code, which falls under the constitutional principle of freedom of expression.

Under that provision,
Once the work has been publicly shown, the author cannot forbid (…) 3° provided that the author’s name and source are clearly indicated: 4° parody, pastiche and caricature, observing the rules of the genre“.

The issue was therefore the recognition – or rejection – of the exception for parody in the case of these contentious works.

Rennes Court’s decision was much awaited.

It was announced on May 10th, after careful consideration of the characteristics of property rights constituted by copyright and the aspects of freedom of expression.

After having examined the contentious works in detail, the court retained the exception for parody, thanks to the following elements:

  • the immediate identification of the original work within the contentious works (more precisely, of the two works by Hopper & by Hergé / Works by the artist Marbout) allowed through:

    • the distinction from the original work (particularly due to Hergé’s renown, different supports and types of work (Canvas/cartoon), the omnipresent allusion to Hopper, the signature of the contentious works by the artist Marabout, the absence of the dominant nature of Hergé’s work within the contentious works, the obvious distortion and reinterpretation carried out by the artist Marabout);
    • the bizarre nature of the situations in which Hergé’s characters find themselves, as they are not usually found in sexualised settings;
  • the humorous intent of the author of the contentious works,

    • expressed by the artist himself in the presentation of his works,
    • perceived by the people having viewed his works,
    • felt by the court itself.
  • the humorous effect, which invites the viewer to wonder about the character Tintin, to imagine a sequel to the scenes produced on canvas, and to smile about that, without that causing any harm for the author or the original work.

    The court added in this respect that the contentious works do not disparage Hergé’s original work as “they are not representations of a pornographic nature (…)” but “the scenes are only sexualised by the presence of women who undoubtedly suggest desire but to the exclusion of any representation of a sexual act“.

As a result of this analysis, the court concluded that the contentious works benefitted from the exception for parody, which allowed the author to reproduce works by Hergé without the prior authorisation of his beneficiaries, and without such reproduction being considered as an infringement.

The court, therefore, dismissed the claims by Moulinsart and Mrs Rodwell for infringement of copyright and Hergé’s moral rights.
It is entirely possible that Moulinsart may appeal this decision. Effectively, it is difficult not to consider that this decision paves the way for numerous and varied uncontrolled parodies that could infringe on Hergé’s moral rights.

That said,
Another decision, opposing Hergé’s copyright to freedom of artistic expression, is awaited very soon. That of Marseille Court on 17 June, in a case brought by the company Moulinsart against the French artist known as Peppone who made resin busts of Tintin.
Tintin’s legal adventures are far from having reached their end…

To see Xavier Marabout’s works :

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