Parody as Fair Use in Europe

The copyright law of the members of the European Union has been harmonized by the Directive 2001/29/EC of 22 May 2001 on certain aspects of copyright and related rights in the information society. The members states are free to allow parodies of copyrighted work:

“Article 5
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 [Reproduction right] and 3 [Right of communication to the public of works and right of making available to the public other subject-matter] in the following cases:
(...)
(k) use for the purpose of caricature, parody or pastiche;
(...)”

The German Copyright Statute (Urheberrechtsgesetz) does not adress parodies directly. It does, however, recognize a right to ''free use'' (§ 24, Freie Benutzung). ''Free use'' can be described as a thin line between the exclusive right of the author to ''editings and transfigurations'' (§ 23, Bearbeitungen und Umgestaltungen) and the moral right of the author to be protected against “disfiguration'' (§ 14, Entstellung des Werkes).
The German Supreme Court held that a parody is ''free use'', when the elements of an existing work are picked up and reassembled in a different context in order to let them look weird and satirical. The court created for this purpose the word ''anti-thematically'' (antithematisch). The court had to deal with a modified image of the eagle in the German parliament. Guess which eagle is the original one!
An important exception exists with respect to pieces of music! The copyright statute provides a ''rigid music protection'' (§ 24(2)). The reconizable melodie of a song cannot be used freely. Thus, without the consent of the auhtor a parody of a song is barred!
This is, however, the law in Germany. The underlying European Directive enables other member states to deal with parodies in different ways.