And copyright and freedom of expression lived happily ever after...

The case in brief

At the heart of the matter are a cartoon published in Berlingske newspaper on 18 May 2019 and a photo published on 22 April 2020. The cartoon accompanied an article entitled "The Evil in Denmark", discussing the way in which the harsh tone of Danish public debate over foreigners is perceived in the other Nordic countries. The cartoon is clearly a depiction of the Little Mermaid, only she is shown holding a torn-up Danish flag, and her face is distorted and zombie-like.

History of the Little Mermaid

The Little Mermaid sculpture was created in 1913 by Danish sculptor Edvard Eriksen, commissioned by Carl Jacobsen of the Carlsberg Brewery.

When, in 1959, Mr Eriksen died, rights in the sculpture passed to his heirs. Copyright in the sculpture will expire in 2029.

The cartoon caused Edvard Eriksens Arvinger I/S, which owns the copyright in the sculpture, to sue Berlingske's chief editor for infringement of copyright and good marketing practices. The photo showing the Little Mermaid wearing a face mask was used as an illustration for an article entitled "Afraid of Coronavirus? Then your vote probably goes to The DanishPeople's Party". The photo became part of the lawsuit after having been published in Berlingske in April 2020. The article was about a research project at Aarhus University which had shown a correlation between a fear of infection and right-wing political beliefs among Danes.

District Court ruling

The District Court found that the two illustrations infringed the heirs' exclusive copyright to the Little Mermaid, as the cartoon and photo had an undeniable and intended resemblance to the original work.

The heirs were also successful in their claim that the negative political context in which the work had been used was contrary to their moral rights.

The District Court thus rejected that the references to the Little Mermaid were covered by Berlingske's right to freedom of expression and dissemination of information of obvious public interest. In this context, the District Court emphasised that the reference to the Little Mermaid was not necessary to convey the message of the articles. The District Court also rejected the defence that the cartoon constitutes an independent work that solely utilises stylistic elements and ideas from the original work.

However, the District Court found no proof that Berlingske had utilised the national icon status of the Little Mermaid contrary to good marketing practices.

High Court ruling

In the case before the Eastern High Court, the High Court had to also decide whether the cartoon constituted a lawful parody and whether the specific context in which the cartoon and the photo were used made them lawful expressions pursuant to Article 10 of the European Convention on Human Rights.

Berlingske's chief editor and the third-party intervener Danske Medier argued in this regard that the Little Mermaid had not been used in its status as a copyrighted artistic work, but as a national icon and symbol of Denmark and Danishness.

However, the High Court rejected this argument and upheld the District Court's judgement with the difference that the compensation to the heirs was increased to DKK 300,000. Unlike the District Court, the High Court furthermore found that the cartoon and the photo were contrary to good marketing practices. The reason given was that the intention of using the Little Mermaid was to attract attention and thereby increase interest in Berlingske's journalistic products.

The High Court judgement was remarkable in that, compared to the previous conception of law, it significantly reduced the significance of the right to freedom of expression and the non-statutory parody principle.

Supreme Court ruling

Overturning the decisions of lower-instance courts, on 17 May 2023 the Supreme Court dismissed the infringement claims against Berlingske's chief editor.

In its judgement, the Supreme Court states that Danish copyright law includes a principle of parody that is based on a firm Danish and common Nordic tradition supported by case law and the legislative history behind the Copyright Act. Echoing the European Court of Justice's case law in respect of the Infosoc Directive and in accordance with the implementation of the DSM Directive into Danish law in 2021 and the legislative history in this regard, the Supreme Court furthermore found that the principle of parody must be interpreted in accordance with EU law. This means, among other things, that a parody can be lawful both in cases where the parody is directed at the work itself and in cases where the parody relates to something else. In this specific case, Berlingske used the Little Mermaid as a parody of Denmark, Danes and Danishness.

Referring to the Little Mermaid's status as a national symbol, the Supreme Court furthermore dismissed the claim against Berlingske for having used a photo of the sculpture wearing a face mask in an article about the COVID-19 pandemic and the Danes' political views. In its assessment of both the cartoon and the photo, the Supreme Court took into consideration the significance of the freedom of expression of the press.

In addition to the specific balancing of the conflicting fundamental rights, the Supreme Court stated in general about the balancing of copyright and the right to freedom of expression that "when determining whether an expression holds societal significance, emphasis may be placed on the importance of the functioning of the press, the political content of the expression, and the right to artistic freedom. Furthermore, 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 invoked IP right results in an interference with  the freedom of expression that goes beyond what is necessary in a democratic society."

Therefore, the balancing of the two fundamental rights depends not only on whether it is necessary to use a copyrighted work to convey a message, but also whether it is necessary to interfere with the freedom of expression of the press in order to protect the copyright holders' copyrights. The Supreme Court's ruling also indicates that very strict sanctions for infringement of intellectual property rights may in certain cases lead to an inappropriate "chilling effect" on the freedom of expression.

Finally, the Supreme Court dismissed the marketing law infringement claim against  Berlingske's chief editor. Contrary to the High Court, the Supreme Court ruled that even though Berlingske as a commercial newspaper company is a trader within the meaning of the Danish Marketing Practices Act, the Marketing Practices Act does not apply to the editorial content of the press. This clear ruling from the Supreme Court is of significant importance to the Danish media. Furthermore, contrary to the High Court judgement, the Supreme Court judgement on this point is in line with the previous practice regarding use of personal photos by the press. And so copyright and freedom of expression lived happily ever after ...

Read the judgment here (in Danish).

Kromann Reumert took over the case before the Supreme Court and represented Berlingske's chief editor and Danske Medier as third-party intervener.