A carnival hit set to an ABBA melody: parody or infringement?

Carnival band De Kapotte Kachels scored well over a million streams with "Dikke Pens (Clap Your Pens)", set to the melody of ABBA's "Take A Chance On Me". Universal had the track taken offline. The District Court of Midden-Nederland found for Universal, and did so, strikingly, without disputing that the track is a parody. What the judgment means for parodies of well-known songs, and where the line now runs.

Carnival band De Kapotte Kachels set “Dikke Pens (Clap Your Pens)” to the melody of “Take A Chance On Me”. Within a short time the track had been streamed well over a million times. Universal Music Publishing, acting for ABBA, had it taken down from Spotify and other platforms. The band went to court, arguing that the track is a permitted parody within the meaning of article 18b of the Dutch Copyright Act.

On 29 July the District Court of Midden-Nederland gave judgment. The band lost. You can read the full judgment here.

What makes this judgment interesting is that the criteria from the Deckmyn ruling were met. Just as in Deckmyn (which concerned a political calendar published by Vlaams Belang in which the cover of a Suske en Wiske comic had been altered), the track evokes an existing work while displaying noticeable differences, and it is humorous in intent. The case foundered on the balancing of interests.

Why the balancing of interests came out differently

In striking that balance the court took into account, among other things, that ABBA’s recognisable melodic line runs through the whole track, that the band has a commercial purpose (streams, exposure, bookings) and that the track would remain available worldwide and indefinitely through streaming services. Something quite different, then, from a calendar issued in a limited print run, as in Deckmyn. The lasting association between an ABBA love song and a carnival track on an altogether different subject, being overweight, also played a part.

No chilling effect: what is still allowed?

The court did not accept the argument that refusing the claims of De Kapotte Kachels might have a chilling effect, emphasising that its ruling turns solely on the specific circumstances of this case. Parodies of well-known songs are therefore not prohibited in any general sense. De Kapotte Kachels may moreover continue to play the track live, and recordings of those performances may go on YouTube. It is only for commercial exploitation of the recording, through streaming, radio or physical formats, that the parody exception offers no justification here.

Costs and what happens next

Because these proceedings concerned copyright infringement, the special costs rule for intellectual property cases applied, and De Kapotte Kachels have to pay Universal’s costs of €21,000.

“Dikke Pens (Clap Your Pens)” will therefore not be making a return to Spotify, which carnival-loving parts of the Netherlands may well regret. Unless the band appeals and wins, of course. But I do not expect that.