Cartoon and photo of the Little Mermaid did not infringe copyright

Case no. BS-24506/2022-HJR
Judgment delivered on 17 May 2023

Tom Jensen, Editor-in-Chief, Berlingske
vs.
Sculptor Edvard Eriksens Arvinger I/S, represented by Alice K. Eriksen

Intervener for Tom Jensen:
Danske Medier (Danish Media Association)

On 18 May 2019, the Berlingske newspaper published a cartoon depicting, among other things, the Little Mermaid with a zombie-like face on the front page of section 2 “Opinion”. The cartoon was titled “Evil in Denmark”. The text beneath the cartoon referred to an article inside the newspaper about the debate culture in Denmark during the 2019 elections. On 22 April 2020, Berlingske published an article in section 3 featuring a photo of the Little Mermaid wearing a face mask. The article described a research project about the correlation between fear of COVID-19 and political persuasions.

The case concerned the issue of whether Tom Jensen, Editor-in-Chief of the newspaper, had infringed the sculptor Edvard Eriksen’s heirs copyright to the Little Mermaid when he published the cartoon and the photo. The Supreme Court was particularly called on to consider whether the cartoon was an independent work or whether there were other legal grounds to hold that the cartoon was a parody or caricature that did not infringe copyright.

The Supreme Court referred to the parody principle in Danish copyright law. This principle is rooted in established Danish and pan-Scandinavian tradition as supported by the legislative history behind the Danish Copyright Act and case-law. The Supreme Court also held that parodies could be considered independent works, and that this applies regardless of whether the parody is very close to the original, and whether the parody is aimed at the original work or other subject-matter.

The Supreme Court also referred to the fact that the concept of parody must be interpreted with reference to EU law, and that a fair balance must be struck between, on the one hand, the interests and rights of the copyright holders and, on the other, the freedom of expression. This also applies in cases where the work is not a parody, but where the copyright restricts other people’s freedom to express themselves.

Based on an overall assessment of the facts of the case, the Supreme Court ruled that neither the cartoon nor the photo of the Little Mermaid wearing a face mask published in Berlingske in connection with newspaper articles infringed the heirs’ copyright to the Little Mermaid sculpture.

The High Court had reached a different conclusion.