In its Pippi Longstocking Costume decision, the Federal Court of Justice still held that the essential feature of a parody was the “anti-thematic approach”, i.e., the artistic engagement with the parodied work or with the subject matter represented by the utilized work. Now, it appears to have abandoned this legal opinion with a view to the Deckmyn and Vrijheidsfonds v Vandersteen decision of the Court of Justice of the European Union.
The Federal Court of Justice had already previously indicated that the recognizable use of the older work is also possible in a way other than by an anti-thematic approach. Invariably, the court failed to provide specific examples, however, and instead demanded, mantra-like, the anti-thematic approach subsequent to these general remarks in the case of parodies (for example, in the Federal Court of Justice decisions Alcolix and Asterix Persiflagen).
This may be different now. The legal term parody now no longer requires any kind of engagement in the opinion of the Federal Court of Justice. The reason for this is that due to a decision of the Court of Justice of the European Union, the concept of “parody” is now assessed by the Federal Court of Justice to be an autonomous concept of European Union law. According to the case law of the Court of Justice of the European Union, it is sufficient for parody to display an original character of its own, consisting not only in displaying noticeable differences with respect to the original parodied work.
This is already the case, however, if the parody constitutes an expression of mockery of the original work. One reason for this may be that parody is protected in particular by freedom of expression and artistic freedom and its limits may only be drawn by way of fair balancing of interests.
These limits appear to be wide, however (apparently due to the all-dominant artistic freedom). According to the further assessment of the Federal Court of Justice, a ban will only be acceptable in the future, with a view to the Deckmyn and Vrijheidsfonds v Vandersteen decision, when either concerns under personal copyright law (in particular, Section 14 Copyright Act) or interests of third parties are violated with radiating impact on the author and his work (for example, discrimination according to Art. 21 of the EU Fundamental Rights Charter), in connection with which the author does not want his work to be known. It remains to be seen and will be interesting, how the courts of first instance will react to this new decision-making practice.