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Carnival band C.V. de Kapotte Kachels (Kapotte Kachels) took a chance, but didn’t succeed. On July 29, the Dutch District Court of Midden-Nederland issued a closely watched decision in a dispute between Kapotte Kachels and Universal Music Publishing B.V. (Universal), ruling that the song “Dikke Pens” (“Clap Your Pens”) doesn’t qualify for the parody exception under Dutch copyright law. The court found the parody exception couldn’t be invoked to justify the song’s commercial exploitation on streaming platforms.
Parody of ABBA’s “Take a Chance on Me”
Kapotte Kachels recorded “Dikke Pens” using the melody of ABBA’s “Take a Chance on Me” while replacing the original lyrics with entirely new ones. The song praises obesity and makes jokes about being fat but living a happy life. The song was released on Spotify and other streaming services, and the band also performs it live.
Universal, which administers the rights in ABBA’s musical works, arranged for takedown of the song from online platforms, arguing that it infringed the copyrights to “Take a Chance on Me”. Kapotte Kachels challenged the takedown, asserting that “Dikke Pens” constitutes a lawful parody under Article 18b of the Dutch Copyright Act (DCA). The band sought for a declaration of the court confirming that the song falls within the statutory parody exception, so it could be restored on streaming platforms.
The parties agreed that “Dikke Pens” is, in fact, a parody of “Take a Chance on Me”. The dispute centered on whether it qualifies as a permissible parody under Dutch copyright law. The court answered that question in the negative.
The Dutch parody exception
Article 18b DCA provides that the use of a copyrighted work doesn’t constitute infringement where the use qualifies as a parody, provided it is reasonably acceptable under prevailing standards of social conduct.
The Dutch parody exception must be interpreted in light of the Deckmyn decision of the Court of Justice of the European Union (CJEU) and can successfully be invoked if the following three requirements defined by the CJEU are met:
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the parody must evoke an existing work while remaining noticeably different from it
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it must express humor or mockery
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a balance of interests between the rights of the copyright owner and the freedom of expression of the parodist must be in favor of the parodist.
The parties agreed that the first two requirements were satisfied, but it was up to the court to assess the third point and make a balance of interests.
Why the balancing favored Universal
In concluding that the parody exception didn’t apply, the court discussed the following relevant factors:
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The melody of “Take a Chance on Me” is used throughout “Dikke Pens” and constitutes a substantial and recognizable element of the song. Because of ABBA’s worldwide popularity, the melody is immediately identifiable to the public at large.
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The court found that Kapotte Kachels has a clear commercial interest in exploiting the work. Making the song available through streaming services generates revenue directly and increases the band’s visibility, which in turn results in indirect revenues because it promotes the band and leads to more live performances.
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The online release was neither temporary nor incidental. By making the song available indefinitely through global streaming platforms, the band enjoyed ongoing commercial exploitation of the underlying musical work.
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The court also considered ABBA’s interest in controlling the association between its music and third-party content. According to the court, “Dikke Pens” creates a lasting association with both “Take a Chance on Me” and ABBA, while ABBA has made clear that it doesn’t wish to be associated with the song’s lyrics or message.
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Importantly, the court found that Kapotte Kachels’ freedom of expression wasn’t entirely restricted. ABBA indicated that it didn’t object to live, offline performances of “Dikke Pens”. In the court’s view, this reduced the impact of restricting the song’s online distribution.
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Finally, the court rejected broader societal arguments as brought forward by Kapotte Kachels. It held that the existence of numerous other parodies was irrelevant to the legal assessment of this particular case, and that any potential chilling effect on future parody creations likewise didn’t affect the outcome of this balance of interests.
Conclusion and key takeaways
The decision emphasizes that, under Dutch copyright law, satisfying the basic elements of a parody doesn’t automatically shield a work from infringement claims. Even where a work clearly evokes an existing copyrighted work but is intended as humor or satire, courts must still weigh the interests of the copyright owner and the parodist.
Here, the court concluded that the commercial, worldwide, and indefinite online exploitation of “Dikke Pens”, combined with the extensive use of ABBA’s recognizable melody and ABBA’s legitimate interest in avoiding association with the song, outweighed the band’s reliance on freedom of expression. As a result, the parody exception couldn’t successfully be invoked.
Because Kapotte Kachels lost the case, the court ordered the band to reimburse Universal’s litigation costs. The band can use the EUR25,000 that it raised via crowdfunding to compensate Universal and a little part of its own procedural costs. Taking a chance sometimes pays off, but could also harm you after all.
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