Case Summary and Outcome

The Court of Appeal for Aix-en-Provence, France ruled that sculptures inspired by the Tintin comics constituted copyright infringement. Tintin is the main character of “The Adventures of Tintin” comics created by Hergé and the owner of the intellectual property rights to Hergé’s derivative works took legal action to halt the marketing of sculptures explicitly based on the comic strip universe. The artist of the sculptures invoked the exception of parody. The Court rejected the exception, holding that the sculptures were not sufficiently distinct from the original Hergé works and that parody must involve an element of humor, which was lacking in this case.

Facts

In 2017, a sculptor from Aix-en-Provence, France, Christophe Tixier, known as Peppone, created and marketed works inspired by the work of a renowned comic book author, Hergé. These sculptures were of the face and bust of Tintin, and the rocket featured in the books “Objectif Lune” and “On a marche sur la Lune”. Peppone titled his works with reference to Tintin book titles.

Peppone had not sought prior authorization from Hergé’s heirs before making his works. Moulinsart, the successor in title to Hergé’s works, exercises its rights over all types of derivative or secondary works, and the company opened legal proceedings against Peppone and a Marseille-based art gallery which had featured 55 busts of Tintin and 14 sculptures.

Moulinsart argued that the character of Tintin was an original intellectual creation born from the imagination of Hergé, just like the rocket in “Objectif Lune” and “On a marche sur la Lune”.

Peppone argued that the traits of the character of Tintin weren’t original. He also argued that his works fell within the exception of parody provided by Article L. 122-5, 4° of the French Intellectual Property Code. This Article provides that “When the work has been disclosed, the author cannot prohibit: parody, pastiche and caricature, taking into account the laws of the genre”.

In 2021, the Marseilles Court of First Instance found that Peppone and the gallery operator had committed acts of copyright infringement and rejected Peppone’s argument of the parody exception, on the grounds that Peppone’s works did not prove “comic distancing”. The Court held that the parodic position defended by Peppone in fact, contained nothing more than “a challenge to intellectual property rights and a claim to be able to free oneself from them on the sole pretext that the figure of Tintin is universally known”.

Following the ruling in its favour, Moulinsart once again brought an action against Peppone in summary proceedings for the same purpose, as Peppone was once again marketing works deemed to be counterfeit. On July 2021, the parties appealed to the Aix-en-Provence Court of Appeal.

Decision Overview

Judges Gilles Pacaud, Catherine Ouvrel, Angélique Neto and Julie Deshaye delivered the judgment of the Aix-en-Provence Court of Appeal. The central issue under consideration was whether an original artistic work could be exempt from copyright infringement proceedings if its author invokes the parody provision outlined in article L. 122-5 4° of the Intellectual Property Code of France.

Article L 122-5 4° of the Intellectual Property Code concerns exceptions to copyright, and stipulates that the author of the original work cannot prohibit a short quotation, stylization, caricature or even parody. The term “parody” is now used to cover pastiche and caricature and jurisprudence considers that the parody must provoke laughter without creating a risk of confusion and appropriating the original work and without denigrating the original author by way of infringement of his moral right.

The Court clarified the application of the parody exception, and found that Peppone’s sculptures “intellectually correspond only to the aesthetic deviation of work, without any specific intellectual contribution and/or interpretation, not a dash of humor or even ridicule.” The Court stressed that a parody is considered a work that “causes a smile”, or causes the manifestation of more inner feelings.

The Court found that Peppone created only busts of the main character of the protected comic and rocket, in no way showing blatant humorous or even inner feelings. It also found that Peppone did not make a significant effort to name his sculptures as all the titles included the protected name of “Tintin”, and most of them included all or part of the titles of Hergé’s books. This lack of a parodic approach in the choice of the titles reinforced the findings that Peppone had sought to exploit the fame of Hergé and his works for purely commercial purposes.

Accordingly, the Court ruled that the parody exception put forward by Peppone and the gallery was inadmissible, on the grounds that the sculptures were not sufficiently distinct from the original work.