Danish Supreme Court acquits Berlingske in Little Mermaid case

On 17 May 2023, Denmark’s Supreme Court ruled in favour of the Danish newspaper Berlingske, overturning the rulings of the two lower courts.

The newspaper and the heirs of the artist behind the famous Copenhagen statue had been engaged in a long court war that has now culminated in the acquittal of its chief editor.

The legal battle began in May 2019, when the Berlingske newspaper published a caricature of the famous statue on the front page of its "Opinion" section. The drawing, which was captioned "Evil in Denmark", depicted the Little Mermaid with a zombie-like face. Underneath the drawing was a reference to a newspaper article on the debate culture in connection with the 2019 election campaign. In April 2020, Berlingske published an article in the third section of the newspaper that included a picture of the Little Mermaid with a face mask. The article referred to a research project on the relationship between fear of the coronavirus and political obedience.

The sculptor's heirs sued the publisher of the Danish newspaper for copyright infringement over the sculpture and were successful in the two lower courts. The reason for this success is that the parody exception to copyright is not explicitly stated in Danish law. However, the Supreme Court clarified that Danish copyright law "is governed by a parody principle based on a common Danish and Nordic signature tradition, supported by the legislative history of the Copyright Act and case law".

Furthermore, it stated that the concept of parody must be understood in accordance with EU law. The judgment refers to the case law of the Court of Justice of the European Union, in particular Case C-201/13 ("Deckmyn case"), in which the European Court ruled on the content of the EU law concept of parody. The judgment in this case specifies that the essential characteristics of a parody must, on the one hand, evoke an idea of a pre-existing work while being visibly different from that work. On the other hand, it must be an expression of humour and mockery. This interpretation is intended to preserve a fair balance between the rights and interests of authors and the freedom of expression of the user of a protected work. The Danish court adds that one of the characteristics of parody is that it generally serves a purpose unrelated to the original work.

Consequently, the Danish Supreme Court denied copyright infringement in both cases. As regards the photography, it considers that the use of the Little Mermaid did not go beyond the purpose of the article. In the case of the drawing, it makes it clear that it is a caricature of the Little Mermaid for a purpose totally unrelated to the original work.

Tom Jensen (the newspaper’s chief editor), upon hearing the verdict, declared that it was "a happy day for all the media in Denmark".