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Feb 17, 2022
A Mermaid Has No Tears — Danish Court Rules Zombie Cartoon and Face-Masked Photo Infringe Copyright in The Little Mermaid Statue
Denmark’s Østre Landsret court sided with the estate of Edvard Eriksen, the creator of The Little Mermaid statue in Copenhagen’s harbour, in a copyright infringement claim against the Berlingske newspaper over its zombified cartoon and face-masked photograph of the statue.1 As artistic works, statues are subject to copyright, granting the copyright owner the exclusive right to make copies of the statue. This includes both the right to make replica statues and depict the statue in other media, such as photographs, drawings or videos. Although Eriksen’s The Little Mermaid statue was created over 100 years ago and is based on a public domain fairy tale, it is still subject to copyright in Denmark. The Berlingkse newspaper unsuccessfully sought to rely on a fair dealing defence, claiming its defaced cartoon and photograph of The Little Mermaid statue were parodies.
The Little Mermaid statue and infringement claim highlight some of the unusual copyright implications of derivative works, publicly displayed art and international variations in law.
The Little Mermaid Gets Her Legs
Hans Christian Andersen taught us that mermaids live for 300 years, after which point they dissolve into foam. Humans, on the other hand, only live for a few decades, but have an immortal soul that may live forever. The Little Mermaid made a deal with the sea witch, paying her voice in exchange for legs and a human form. If she could make the prince fall in love with her, she would live happily ever after as a human with the prospect of eternal life through an immortal soul.
As a copyrighted work inspires further works, those new works can continue to have copyright even once the copyright in the original work has expired. Most countries around the world, including Canada, grant copyright based on the life of the author plus additional years after death (usually 50 or 70 years). Although this is a seemingly long period of time, the years inevitably pass, and the copyright, like a mermaid, dissolves into foam and the work joins the sea of public domain. However, if a work is further developed, resulting in the creation of a new work, that new work will get its own copyright term. In this sense, a copyrighted work can have an immortal soul: while the original work’s copyright expires, copyright can live on in new derivative works.
Andersen’s The Little Mermaid was published in 1837. In 1909, Danish composer Fini Henriques composed a ballet based on the fairy tale, also entitled The Little Mermaid. Carl Jacobsen, a Danish art collector, loved Henrique’s ballet and commissioned sculptor Edvard Eriksen to create a statue of the titular character. Eriksen even arranged for the ballerina who played the role of the Little Mermaid in Henriques’s ballet to model for the statue. The statue debuted in Copenhagen in 1913.
Even though Andersen’s The Little Mermaid has long been in the public domain, each new artistic interpretation allows the new creators to claim copyright in their creation. While the new works cannot claim copyright in any of the existing elements, they can claim copyright in the new expression and interpretation. Eriksen’s statue, depicting the moment when the Little Mermaid’s fins transmute into legs, perfectly embodies how his artistic creation is emerging out of an existing work from the foamy sea of the public domain.
Freedom of Panorama
Copyright in publicly-displayed works, such as statues and buildings, can pose problems for creators. Journalists, tourists or movie producers who take photographs or videos of life in a city may infringe architects’ or artists’ copyright by including the publicly displayed works in their shots. This can create unacceptable legal risk for creators, as clearing all of the intellectual property rights for every building or statue in their work could be impossible.
To solve this problem, many countries have adopted “freedom of panorama” exceptions to infringement, including Canada. In Canada, paragraph 32.2(1)(b) of the Copyright Act creates an exception to infringement where people reproduce sculptures on permanent public display or architectural works in paintings, drawings (other than architectural drawings), engravings, photographs or cinematographic works. This allows photographers, cinematographers and artists to freely create artistic works of cityscapes without fear of infringing copyright.
Freedom of panorama exceptions are far from the norm. In the United States, while architectural works are subject to a freedom of panorama exception, sculptures are not.2 In 2010, the United States Postal Service (USPS) started printing stamps featuring a photo of the Statue of Liberty. Unknown to USPS at the time, the photograph was of the Las Vegas Statue of Liberty (a modern sculpted replica that is subject to copyright) rather than the New York Statue of Liberty (which is public domain). The court held that USPS infringed the copyright in the Las Vegas Statue of Liberty replica and awarded a $3.5 million damages award against USPS.3
Denmark has a freedom of panorama exception, but only buildings may be freely reproduced.4 Artistic works on public display may only be reproduced if the use is non-commercial. In the case of Eriksen’s The Little Mermaid statue, since newspapers are commercial operations, a cartoonist’s rendition of the publicly displayed statue, even a distorted one, could be an infringement of copyright under Danish law.
Fair Dealing for Parody
Since the Berlingske’s cartoon copies the statue’s particular rendition of the Little Mermaid, rather than being a free-standing interpretation based on Andersen’s fairy tale, Eriksen’s estate may enforce its copyright against the cartoon. As a commercial operation, the Berlingske cannot rely on Denmark’s freedom of panorama exception; its only possible defence is fair dealing for parody.
The Berlingske’s cartoon is a posterized sketch of the statue in Copenhagen’s harbour holding a fraying black flag and sporting a zombie face. The cartoon appears alongside an editorial calling Denmark’s social debate culture the most vicious in Scandinavia. In addition, the newspaper published a photograph of the statue wearing a face mask accompanying an article discussing the impact of COVID-19 in Denmark. The Berlingske’s cartoon is nothing unusual—many editorials use defacing caricatures as metonyms for the places they represent (e.g. The New Yorker’s Statue of Liberty in mourning or The Economist’s Cristo Redentor with an oxygen tank).
Eriksen’s estate took the position that they should be able to protect the statue from any political associations. They wanted The Little Mermaid’s image to be clean and not stand for anything other than Danish pride. The estate argued that the cartoon was a malevolent depiction rather than a humorous one, and therefore the newspaper could not rely on a parody fair dealing defence.
Denmark does not have a statutory parody exception for copyright infringement, and the Court held that any exception must be extremely narrow in scope. Since the cartoon was targeted at the state of social debate in Denmark rather that the statue itself, a parody fair dealing exception could not apply. The Court further noted that the newspaper did not need to use the copyright-protected statue in its articles.
The Court awarded Eriksen’s estate 300,000 DKK (about C$58,000) in damages for the infringements, plus 358,280 DKK in costs (about C$70,000). While noting there was no evidence of further additional profit from the infringement, the Court considered the overall nature of the infringements and Berlingske’s circulation figures in determining the quantum of damages.
The Canadian Perspective
In Canada, the Eriksen estate’s case likely would have had no legs to stand on. Canada has a shorter term of copyright (life of the author plus 50 years) than Denmark (life of the author plus 70 years), and thus works enter the public domain quicker. The earlier expiration of copyright is intended to allow for more works to be created based on existing works. Berlingske’s cartoon is a new work based on a statue, which was based on a ballet, which was based on a fairy tale. Eriksen died in 1959: the statue’s copyright would have expired in Canada in 2010. The estate would have had no copyright to assert in Canada.
Even if the work was still subject to copyright, The Little Mermaid statue is in permanent public display; its copyright cannot be enforced against drawings, paintings or photographs of it in Canada under the freedom of panorama provision.
Canada’s fair dealing for parody exception has been interpreted far more broadly than Denmark’s. The Canadian courts have held that a parody does not need to be directed at the work.5 While fair dealing for parody will protect humour, it may not protect use intended to embarrass, punish or defame.6 Courts will be cautious when considering alternatives to parody, as artists have a certain amount of creative leeway and some alternatives may not be as humorous.7 A parody may still be fair dealing even if it harms the market for or public perception of a work.8
These considerations suggest that Berlingske would have had a strong parody claim in Canada. Eriksen’s statue enjoys a unique status as a symbol of Denmark and Danish culture. A defaced rendition of the statue is stinging commentary of Danish social affairs. There are few alternatives that could invoke the same sentiments with the general population as a zombie-faced or face-masked Little Mermaid. In the context of parodies, creators do not have a right to complete control over the image of the work.
Although there have been many attempts internationally to harmonize copyright law, seemingly minor differences in laws can completely change the outcome and level of legal risk. Creators and publishers with global ambitions, especially those in the internet context where content can so easily cross borders, should carefully consider the unique copyright considerations of each jurisdiction they engage with to make sure their publications comply with all local laws. What is perfectly lawful to publish in one country could result in a hefty damages award for infringement in another.
1 Jensen v. Eriksen (9 February 2022), Sag BS-47536/2020-OLR (DK).
3 Davidson v. United States, No. 13-942C, US Court of Federal Claims.
4 The Consolidated Act on Copyright (Consolidated Act No. 1144 of October 23, 2014), art. 24(2)–(3) (DK).
5 United Airlines, Inc. v. Cooperstock, 2017 FC 616 at para 119.