The Netherlands: Darfurnica, Miffy and the right to parody!

• Author: Lucie Guibault
• Position: Institute for Information Law, University of Amsterdam
• Pages: 236-248

2011

Lucie Guibault

236

3

Abstract: The legal community of the Nether-

lands let out a sigh of relief in May 2011 when the judg-

ment of the District Court of The Hague in preliminary

proceedings was handed down in the Darfurnica case.1

The same feeling of satisfaction prevailed, more re-

cently, when the Court of Appeal of Amsterdam rende-

red decision in the Miffy case.2 Both decisions, rendered

       

which had given precedence to the protection of intel-

lectual property rights above the user’s freedom of ex-

pression in the form of parody. But freedom of expres-

sion, and parody in particular, are solidly anchored in

    

in favour of the parodist.3 Apart from the fact that both

decisions offer an interesting analysis of where the li-

mit lies between intellectual property protection and

artistic freedom, each decision deserves a few words of

commentary in view of some noteworthy particulari-

ties. 4

The Netherlands: Darfurnica, Miffy

and the right to parody!

by Lucie Guibault, Ph.D., Institute for Information Law, University of Amsterdam,

© 2011 Lucie Guibault

Everybody may disseminate this ar ticle by electronic means and make i t available for download under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtained a t http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

This article may also b e used under the Creative Commons BY-NC-ND 3.0 Unported License, available at h t t p : //

creativecommons.org/licenses/by-nc-nd/3.0/

Recommended citation: Lucie Guib ault, The Netherlands: Darf urnica, Miffy and the r ight to parody!, 3 (2011) JIPITEC 236, para.

1.

A. The Darfurnica case

1 The Darfurnica decision, reproduced below, clearly

sets out the facts of the case and the ex parte pre-

liminary proceedings that led to the appeal decis-

ion. The case revolved around Plesner’s depiction of

the Louis Vuitton handbag in the hands of a young

African child holding a Chihuahua dog, art series

called the ‘Simple Living’, which aimed at calling the

-

stance, before the District court of The Hague, Louis

Vuitton’s claim was accepted in ex parte procee-

dings. On appeal before the District Court of Amster-

dam in preliminary proceedings, both parties relied

on the fundamental right conferred upon them by

the European Convention on Human Rights (ECHR).

Plesner relied on Article 10 ECHR, guaranteeing the

freedom of expression, whereas Louis Vuitton in-

voked Article 1 of the First Protocol to the Conven-

tion, which refers to the protection of property. The

Court of Amsterdam’s preliminary assessment was

that, in the present circumstances, the importance

of the letting Plesner continue to freely express her

(artistic) opinion in the work ‘Simple Living’ out-

weighed the importance of Louis Vuitton’s peaceful

enjoyment of her property.

2

The Darfurnica case is further interesting for two re-



basis for the plaintiff’s claim; and second, because of

-

nes for breach of intellectual property right. On the

-

tion when seeking a prohibition to use the handbag

Audra on T-shirts, posters and other merchandise

(e.g. apart from the painting Darfurnica) in relation

with an African child holding the bag and a Chihu-