On 15 January 2015, the President of the Antwerp Commercial Court decided that the painting "A Belgian Politician" by the renowned painter Luc Tuymans infringed the copyright of photographer Katrijn Van Giel. The President ordered Luc Tuymans to cease the infringement and imposed a penalty of EUR 500,000 for each failure to comply with the order.
The painting at issue portraits Jean-Marie Dedecker, a Belgian politician, after he had suffered a heavy defeat at the ballots. The painting closely resembles Ms. Van Giel's photograph and it was not contested that Mr. Tuymans was inspired by the picture when he made his painting. However, Mr. Tuymans had not requested authorisation from Ms. Van Giel to use or adapt her work and did not identify her as the original author of the work.
In court, Mr. Tuymans argued that the painting qualified as a parody and that, as a result, he did not require the authorisation from Ms. Van Giel to use the photograph.
Mr. Tuymans maintained that he modified the original work and created a new work of art with a new meaning. By taking the picture which he had found in the paper and using this image in his painting, Mr. Tuymans argued that he had created new observations on this image. In particular, the way in which the work had been painted established a distance between the work and the public. In addition, the title of the painting, "A Belgian Politician" added to the parody.
By contrast, the President of the Commercial Court held that the painting closely resembles the original photograph. The President also considered that no element of the work shows the "clownish" or "sardonic" character which would make it a parody of the original work.
The President thus concluded to the infringement of Ms. Van Giel's copyright. Furthermore, the infringement was held to be in bad faith since Mr. Tuymans had declared the photograph to be a strong image that he did not have to modify a lot.
The judgment attracted much attention and criticism as it allegedly restricts artistic freedom. In particular, the President of the Commercial Court has been criticised for not applying the recent guidance of the Court of Justice of the European Union (the "ECJ") on the conditions for finding a "parody" (see VBB on Belgian Business Law, Volume 2014, No 9, p 6, available at www.vbb.com). This is because the criteria adopted by the court, referring to "clownish" or "sardonic" character, appear to increase the burden that was determined by the ECJ. Nevertheless, it remains to be seen whether this guidance would have led the court to reach a different decision. Indeed, the parody exception does not appear to be intended to protect artistic freedom in a general manner, but implies a form of humour or comedy which does not appear to be conveyed by Mr. Tuymans' painting. Also, in other forms of art, such as music, covers and adaptations are generally considered to require the consent of the owner of the original work before they can be used.
Mr. Tuymans reportedly filed an appeal.
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