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Finally: Danish Supreme Court Overrules Lower Courts On Newspaper’s Little Mermaid Cartoons
from the under-the-"c" dept
Last year, we discussed two insane rulings coming out of Denmark stating that a newspaper’s depiction of a statue of The Little Mermaid in cartoon form was somehow copyright infringement. If you’re not familiar with the case, you may be surprised to learn that this is not Disney being Disney. Instead, it is the estate of Edvard Eriksen, creator of Denmark’s bronzed statue of the character from Hans Christian Andersen’s fairy tale, which annoyingly polices anything remotely like the statue should it pop up elsewhere. In this case, the paper, Berlingske, depicted the statue in a cartoon as a zombie, and also in a photograph wearing a COVID mask. Erikson’s estate sued and, as mentioned, both won its initial trial and then won again on appeal.
Given how flatly insane all of that is, the paper of course appealed the ruling all the way up to Denmark’s Supreme Court. Where, finally, sanity has been restored. The court there overruled the previous two courts and ruled that the use by the paper was not copyright infringement.
On Wednesday, the Supreme Court said “that neither the caricature drawing nor the photograph of The Little Mermaid with a mask on, which was brought to Berlingske in connection with newspaper articles, infringed the copyright of the heirs to the sculpture The Little Mermaid.”
The daily’s chief editor, Tom Jensen, had argued that the paper had used the image of The Little Mermaid for noncommercial purposes.
“It would have been a problem for the freedom of the media to do what we were created to do — namely to run a journalistic business, including satirical cartoons — if we had been convicted,” Jensen said.
There isn’t a great deal more to say about this, other than to celebrate this court finally getting it right on this question. Jensen is precisely correct: if media companies couldn’t take photographs that include works that have any sort of copyright protection, they largely wouldn’t be able to take any photographs at all. If they could likewise not create cartoons as commentary depicting famous works of art within the community, that would limit the press’ freedom of expression.
None of this is hard to figure out, other than just how two separate courts got this so wrong. Imagine an America, for instance, in which this editorial cartoon from The North State Journal, showing the Statue of Liberty removing a medical mask, could not be published
Like that cartoon or not, I assure you that you want a country where newspapers are free to publish that cartoon without having to worry about being sued for copyright infringement on a statue. And, yes, the example is imperfect, as the Statue of Liberty doesn’t currently enjoy copyright protections, but you get the point.
And so the mermaid is free once more, no longer bound by the laws of her bipedal captors.
Filed Under: copyright, denmark, edvard eriksen, little mermaid, statues
Comments on “Finally: Danish Supreme Court Overrules Lower Courts On Newspaper’s Little Mermaid Cartoons”
That sound you hear is Tero Pulkinnen throwing up in his mouth as copyright law is finally reined in to actually reasonable limits, while the idiot screaming about the Taco Tuesday trademarks sobs in the corner.
Re:
Don’t be silly, Tero seems to be psychologically incapable of view any part of an[1] objective reality.
[1] It probably doesn’t even needs to be our reality, just a … consistent one would probably be too much.
And yet, in the United States, you still would be sued for copyright infringement.
Quite a bit of wincing here
For one thing, the grievance here comes from an understanding of fair use for parody purposes that is a matter of national copyright law instead of a general facet of the Berne copyright convention.
Another is that
is actually absolutely terrible as argument and precedent since quite basically the comic strip section of a newspaper is not “for noncommercial purposes” since it is bartering printing costs against buying incentive.
I definitely hope that the court did not buy into that argument in its justification since that would be the worst reason to dismiss ever.
At any rate, there should be an international rule that depictions of landmarks in public space is not covered by copyright ever.
Things like not being able to publish a night photograph of Paris, France, because the ilumination of the Eiffel Tower has been copyrighted is insane.
I mean, think of what Frank Lloyd Wright’s estate could do to urban photography, or what this would imply for Mount Rushmore.
I certainly hope that this “noncommercial” quip was more of an editorial mistake rather than anything that made it into the legal reasoning of the highest court.
Envy Denmark's Supreme Court
I am so jealous that Denmark’s Supreme Court makes reasonable decisions whilst the Supreme Court of the United States’ seldom ever does anymore.
Re:
If you want the US Supreme Court to make reasonable decisions, all you have to do is raise enough money to give them a few mil:
https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow
Photo vs. sound recording of copyrighted works
I was struck by the statement “if media companies couldn’t take photographs that include works that have any sort of copyright protection, they largely wouldn’t be able to take any photographs at all.” While having no disagreement with the sentiment, I’d point out that exactly this sort of restriction is in effect with regard to copyrighted music – if you try to post a video that happens to have even a small snippet of copyrighted music in the background, you’re considered to have infringed. Not sure why visuals are different than audio, other than perhaps a more determined legal team (and lobbyists).
Re:
I think the idea here is that a photo containing an image of another image (photo, painting, statue, etc) incidentally is not a replacement for the actual thing captured incidentally. The argument could be made that incidental capture of music CAN be a replacement for the actual music. Hence why music is much more strictly enforced on incidental reproduction.
Re: Re:
I think the idea here is that a photo containing an image of another image (photo, painting, statue, etc) incidentally is not a replacement for the actual thing captured incidentally. The argument could be made that incidental capture of music CAN be a replacement for the actual music. Hence why music is much more strictly enforced on incidental reproduction.
The technical expression for that situation is “Tough luck, buddy”.
Re: Re:
Does a liver of wall surrounding the original stop it being a replacement? Does a distorted few seconds of music from a passing boom box replace the original?
More to the point should copyright be used to stop the distribution of anything that includes a copyrighted work as an incidental inclusion, even if that included work is significant to the photo, like the Eiffel tower and its lights over the photo of a business use in advertising?
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Newsworthy
I’m sorry. Is tech dirt going to do any form of coverage (I don’t expect a retract) of how current president Biden is a traitor who has committed treason for over a decade?
How trump/Russia was a political funded scam, how we have factual evidence of the Clinton and Biden families making major cash out of Ukraine.
How about the undoctored verified footage of Ukrainian hit squads, we government officials, detaining, then murdering, Russians in the south east in 2020 and 2019. Something that bear every family that manages to escape pre war has reported on?
There are real stories that you falsely reported on. Instead we we get cry baby antics about traffic stops.
And copyright.
Our country is lead by a government of fraud/ supporting a country’s past genocide against a liberator… all while cashing the drafts in the bank.
Come on!!! Factual important stories!
Re:
Fuck off with your bullshit disinformation, you pathetic piece of shit defending war criminals who’ve been murdering and raping women and children and bombing the hell out of civilians.
Photography is killing sculptors
Wait a minute! If newspapers are free to publish photos and cartoons (derivative works!) based on the mermaid statue, what incentive does Edvard Eriksen have to make any more mermaid statues in the future?!? Did you ever even think about that? All you freetards just want creators of world famous national landmarks to work for free after they’ve died, don’t you??!